Intestacy rules - Overview of intestacy

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Overview

Intestacy rules are fundamental to succession law, dictating estate distribution when someone dies without a will. For those preparing for the SQE1 FLK2 exam, a strong understanding of these rules is vital as they connect with property law, family law, and equity. This article examines intestacy rules, their legal basis, and practical applications, offering students the advanced knowledge needed for exams and legal practice.

Legal Framework of Intestacy Rules

Statutory Basis

In England and Wales, the Administration of Estates Act 1925, along with updates such as:

  • The Inheritance and Trustees' Powers Act 2014
  • The Inheritance (Provision for Family and Dependants) Act 1975

These laws form the guidelines for estate distribution when there isn't a will, updating legacy amounts and allowing specific claims against an estate if adequate financial provision isn't made.

Distribution Hierarchy

Intestacy rules set out a clear order for estate distribution:

  1. Surviving spouse or civil partner
  2. Children and their descendants
  3. Parents
  4. Siblings (including half-siblings)
  5. Grandparents
  6. Aunts and uncles (including half-relatives)

Without surviving relatives, the estate goes to the Crown.

Detailed Applications of Intestacy Rules

Statutory Legacy and Personal Chattels

If the deceased leaves a spouse and children, the spouse receives:

  1. All personal belongings
  2. A statutory legacy (currently £270,000 as of February 2020)
  3. Half of what remains

The legacy amount is periodically reviewed for inflation.

Per Stirpes Distribution

"Per stirpes" ensures fair distribution among family branches when a beneficiary has died before the deceased, leaving descendants.

Example: Thomas dies without a will, leaving two children, Alice and Ben. Alice died before Thomas with two children, Charlie and Diana. The distribution is:

  • Ben gets 1/2 of the estate
  • Charlie and Diana each receive 1/4

Partial Intestacy

Partial intestacy happens when a will exists but doesn't cover all assets. Unspecified assets fall under intestacy rules, complicating testamentary intentions.

Example: Sarah's will gives her house to her sister and £50,000 to charity but doesn't mention the rest of her £500,000 estate. Thus:

  • The house and £50,000 are distributed per the will
  • Remaining assets (~£450,000 minus the house value) follow intestacy rules

Special Considerations in Intestacy

Adopted and Non-Marital Children

The Family Law Reform Act 1987 equalizes rights for children regardless of birth circumstances. Adopted children are treated the same as biological ones. Complexities can arise with step-children or those conceived through assisted reproduction.

The 28-Day Rule

A beneficiary must outlive the deceased by 28 days to inherit. This can create complications in cases of close deaths.

Example: John and Jane, without children, die in an accident. John outlives Jane by 20 days. Hence:

  • Jane's estate is divided among her parents/siblings
  • John's estate follows intestacy rules for his parents/siblings

Comparative Intestacy: Different Jurisdictions

England & Wales vs. Scotland

Differences include:

  • In Scotland, spouses claim a fixed sum before distribution to children
  • Scots law grants "legal rights" to spouse and children, which cannot be bypassed by a will
  • "Legitim" ensures children receive part of the moveable estate even if disinherited

International Views

Some civil law countries, like France and Germany, have forced heirship laws limiting testamentary freedom to protect certain heirs. This varies from the testamentary freedom found in common law areas like England and Wales.

Practical Advice in Intestacy

To provide sound legal advice:

  1. Will Writing: Highlight the need for a valid will to avoid unintended intestacy effects.
  2. Estate Planning: Understand the interaction between intestacy rules and financial tools like trusts or gifts.
  3. Tax Matters: Consider potential tax effects from intestate distribution.
  4. Cross-Border Issues: Manage complexities with assets in multiple regions.

Conclusion

A strong understanding of intestacy rules is essential for success in SQE1 FLK2 exams and adept legal practice. These rules connect with multiple law areas, demanding comprehensive knowledge of statutes, case law, and real-world implications. Important points include:

  • The legal structure from the Administration of Estates Act 1925 and updates
  • Beneficiary hierarchy and per stirpes principle
  • Considerations like adopted children's rights and the 28-day rule
  • Comparative points on English and Scottish laws
  • Practical estate planning and advisory outcomes

With this understanding, candidates are ready to tackle exam challenges and real-world estate law issues, ensuring legal adherence and client satisfaction.