Wills and intestacy
A will gives you the freedom to decide how you want to pass on your assets. It can be essential in providing for your dependants and is a useful tool in inheritance tax planning.
If you die without a will - known as ‘intestate' - your estate is distributed according to intestacy law. This means you will have no control over who gets what.
How an estate is distributed without a will in England and Wales
The rules changed on 1 October 2014.
Married couples and civil partners with children - your spouse will inherit the first £250,000 (this includes all personal possessions).
Anything above £250,000 is divided in 2 with the spouse getting life interest on 50% and the rest split between the children when they are 18.
Married couples and civil partners without children - the surviving spouse inherits 100% of the estate.
These rules apply if you are separated but not if you are divorced.
Unmarried couples with children - a surviving partner has no automatic right to inherit if their partner dies without a will. If they have children, the children will receive all of the estate when they are 18.
Single people - or those who are unmarried - without children have their estates distributed to surviving relatives in the following order:
2. Brothers are sisters
4. Aunts and uncles
If there are no living relatives, the whole estate will pass to the crown.
How an estate is distributed without a will in Scotland
In Scottish law, if you die without making a Will the following procedure applies once debts and other liabilities have been met:
1. Prior rights are settled first
A surviving spouse or civil partner has certain rights over the deceased person's heritable and moveable estate.
Heritable property means land and buildings.
Moveable property includes money, shares, cars, furniture and jewellery.
A surviving spouse or civil partner is entitled to:
- the dwelling house of the deceased in which he or she was living at the time of the deceased's death, up to a value of £473,000, or this amount if the house is worth more than £473,000
- up to £29,000 worth of any furnishings and furniture of that house
- the first £50,000 cash of the estate if the deceased left children or descendants of children
- the first £89,000 cash if the deceased left no children or descendants.
Prior rights are a first claim on the estate.
2. Legal rights are dealt with next
Once prior rights are settled, the legal rights to the deceased person's 'moveable' estate are dealt with.
The surviving spouse or civil partner is entitled to:
- a third of the deceased's moveable estate if the deceased left children or descendants of children
- half of the moveable estate if the deceased left no children or descendants.
The children are collectively entitled to:
- a third of the deceased's moveable estate if the deceased left a spouse or civil partner
- half of the moveable estate if the deceased left no spouse or civil partner.
Each child has an equal claim. Where a deceased child would have had a claim had they not died before their parent, their descendants may claim their share by 'representation'.
3. The remainder devolves according to relationship
After prior rights and legal rights have been satisfied, the remainder of the estate devolves in the following order:
- Children take the whole
- Either or both parents and brothers and sisters - half to parent or parents and half to brothers and sisters
- Brothers and sisters take the whole
- Either or both parents take the whole
- Husband or wife or civil partner - surviving spouse or civil partner takes the whole
- Uncles or aunts (on either parent's side) take the whole
- Grandparent or grandparents (on either side) take the whole
- Brothers and sisters of any grandparents (on either side) take the whole
- Ancestors of intestate remoter than grandparents, on both paternal and maternal sides generation by generation successively take the whole, but if no ancestors survive in any generation their brothers and sisters come before ancestors of the next more remote generation
- Finally, the Crown takes the whole
Three general rules apply to this order of succession:
- There is no preference for males, or in regard to age
- The children of any deceased relative who would have been entitled to the whole or any part of the intestate estate can take equally among them the share which their deceased parent would have received
- Brothers and sisters or ancestors of the deceased, whether of full blood or half blood, are entitled to succeed but those of the full blood have preference.
This information is based on our understanding of current legislation, which may change in the future. The FCA does not regulate certain tax planning activities and services, will writing or advice on charitable giving.
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