What is intestacy?
Intestacy refers to the laws governing what happens to a person’s estate when they die without leaving behind a will. In most cases, this means that the deceased individual’s assets are distributed per state law or under their last choice.
There is no federal law for intestacy purposes because each state has its own set of regulations that dictate who receives an individual’s property if there is no last will or trust agreement present at death. Some states have adopted mandatory wills and trusts. Still, even then, it can vary from county to county within one state, so make sure you research your specific location before assuming anything.
Are framed to ensure that the distribution of assets is fair and just. Certain people are legally entitled, by law, to a share of an individual’s estate if there is no last will or trust agreement present at death. For example:
The spouse and children who have not been previously divorced from the deceased parent;
A surviving spouse may get everything while the children might only receive a certain percentage (depending on how many they have) depending on what state you live in;
If siblings die before their parents, it’s up to them whether they want anything, but for grandparents or grandchildren, it can depend on where you live as some states give preference over others.
Intestacy rules take into account all those individuals related by blood, adoption, marriage or civil union.
Intestacy in Scotland
In Scotland, intestacy rules1 are different to those in England and Wales.
Intestacy law is not just about the distribution of an estate – it can also affect the administration process.
Different countries have laws on what happens when someone dies without leaving a will or trust agreement behind.
The spouse may receive everything while children might only get a certain percentage (depending on how many they have) depending on where you live; grandparents or grandchildren could be entitled to something too, but again this depends on which state you live in.
If siblings die before parents, then it’s up to them whether they want anything from the inheritance. Still, some states give preference over others for grandparents and grandchildren, e.g., if a grandchild dies before grandparent, their share is divided among those living.
The rules can affect other family members too, such as cousins or uncles and aunts – it all depends on what you’re entitled to; again, this will vary depending on where in the world you live.
It’s essential to know about these intestacy laws because when people die without leaving behind a will, they might not want some of these things happening, which could cause division within families, e.g. if your children only get half of everything. In contrast, someone else gets more than that (depending on which state) because there was no agreement made beforehand. You should take time out now and discuss with your loved ones, so everyone knows how wealth distribution happens after death.
Administering an intestate estate
It can be complicated than you might think, and there are some things to keep in mind before making decisions on behalf of someone who has died without leaving behind a will; for example, if the person had children under 18, then they may have guardianship rights which would make it hard for an executor (the person appointed by the court).
The rules surrounding administration vary from state to state, too, which could also complicate matters further. It’s essential to know about these intestacy laws because when people die without leaving behind a will, they might not want some of these things happening, which could cause division within families, e.g. if your children only get half of everything. In contrast, someone else gets the other half.
The person who dies without a will is often called an intestate or the decedent in legal terms, and it’s their estate that needs to be sorted out, with this being done by either one of three parties:
- The executor; not always possible because they might have died too, so someone else has to take on responsibility for sorting things out
- A curator (the person appointed by the court)
- An administrator; again, not always possible because he may also die before finishing his work. He would then need another party taking over from him, which could be any of those three options depending on what state you live in.
It’s essential to know about these intestacy laws when planning your affairs because if you have a will, then the executor has one less thing to worry about.
When is a will invalid?
A will is invalid if the person who has written it was too young when they did it, younger than 18 years. If someone under that age has been nominated as an executor in a will, any other person can act as executors instead. So you have to make sure there are at least two people with power of attorney for this estate planning task or select some alternative start date such as their 21st birthday. This reduces the risk of one death rendering everything defunct because another party cannot carry out tasks due to lack of experience or education about these matters.
It’s also essential for parents to be aware that a will is invalid if they have not been nominated as executor, even in the event of their death. If you will be inheriting an estate or there has recently been some significant change, and you think this may affect your inheritance, then it’s vital to get legal advice on what your rights are. It can’t hurt us to take care of these things early on, so we don’t need to worry about them later.
Bona vacantia – unclaimed estates
Bona vacantia2 refers to the state of an estate when there is no one alive who can take possession of it. This doesn’t mean that you don’t have a right to share in this estate or inheritance, and your rights are enshrined by Intestacy law.
In England and Wales, any property left behind, if there is nobody with a legal claim, will be passed on according to what’s known as “Intestate succession”. The rules around Intestate succession differ depending on whether somebody was married or not. If they were unmarried at the time of death, their assets must go into the intestate pool for those without spouses before being distributed to the next generation.
If somebody is married or in a civil partnership, their estate will be divided into two parts – one for themselves and their spouse/civil partner.
To ensure that you can benefit from any unclaimed assets should they arise, you must have a Will with clear instructions on how your life insurance policies would be dealt with if something were to happen without warning. This way, there’s no question about who gets what after death, and we can rest easy knowing that our loved ones will not suffer financially because of us when we’ve gone.
Risks of dying without a will
If you die without a will, the law dictates who gets your assets. In England and Wales, this is called Intestacy rules – if somebody dies intestate, their estate goes to their spouse or civil partner first (unless they have children from another relationship).
If there’s nobody in that position, then it’ll go to parents, grandparents etc., but only after any other lineal descendants such as siblings and cousins.
Finally, if none of those people exists because someone died childlessly, the real estate would be inherited by distant relatives with no connection to the person who died.
If you have a will, your assets and other property will be divided among the people to whom you’ve left them in what’s called a “devise.”
The estate can also only go to someone if they are mentioned explicitly by name in the will (although there are some exceptions for spouses) or appointed as executor of your estate. Otherwise, it would go according to Intestacy rules. This is why wills are so important.
What is considered intestate property?
The Intestate property includes assets such as bank accounts, real estate, life insurance policies and retirement plans; cash held at the time of death (even if it’s been deposited into a joint or trust account); and anything that has sentimental value like jewellery or family heirlooms.
Can intestacy rules be challenged?
No. Once the Intestate rules are in place, they cannot be challenged by anyone – even if you have a will and say that someone is to get your estate or certain assets from it.
Can cousins inherit under an intestacy UK?
Yes. Cousins can inherit under Intestate rules if they are the only surviving members of their nuclear family, such as a sibling or parent who is deceased.
Do the Intestate rules work for everyone?
No, it does not apply to those born outside of Britain and never had any British citizenship – such as children from an American father or French mother, even if they have lived in the UK.
Intestacy rules are essential to know. If you have not updated your will or estate plan recently, there may be a lot of uncertainty in what happens when you die. It is best for everyone involved if the process goes smoothly and all assets are distributed according to your wishes.