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Intestacy can be total or partial. A total intestacy occurs when someone dies without leaving a valid will. A partial intestacy is where there is a will and only certain assets in the estate follow the intestacy rules.
Under the intestacy rules, assets may end up passing to distant relatives who were not even aware of the deceased’s existence.
If the deceased leaves no blood relation, then the deceased will leave their entire estate to the Crown.
Intestacy rules flowchart:
What assets do intestacy rules apply to?
Even when there is no will, not all of the deceased’s property will necessarily be affected by the rules. Some examples of assets that aren’t impacted by the intestacy rules are as follows:
- Assets held jointly with someone else, such as a joint bank account, will not be affected by the intestacy rules. In this circumstance, the joint account holders will automatically own the entire account.
- Any assets which are in a trust, where the deceased was one beneficiary.
- Proceeds of a life insurance policy that have been declared to benefit another individual.
- Assets that don’t fall under the jurisdiction of England and Wales. In this instance, the rules in that jurisdiction would apply.
What is partial intestacy?
Partial intestacy occurs when someone dies, leaving a valid will, but the will doesn’t account for their entire estate. In this circumstance, the intestacy rules only apply only to the assets that the will fails to include.
Partial intestacy commonly occurs when a will isn’t properly drafted and reviewed by a specialist solicitor. When a solicitor drafts a will, they will account for such factors to avoid partial intestacy. For instance, a solicitor will include ‘catch all’ provisions to account for other assets and gifts that may fail. A gift can fail when a beneficiary predeceases them. Therefore, including a ‘catch all’ clause will provide an alternative beneficiary in such a situation.
Partial intestacy is also expensive and time-consuming, as an executor will need to carry out tasks, such as consulting a genealogist to identify distant relatives of the deceased’s family.
Can intestacy be challenged?
The intestacy rules are complicated to challenge. However, there are a few instances when someone can claim to set aside an intestacy’s provisions. Two examples of which are:
- One such circumstance is when someone is entitled to claim against the estate under the Inheritance (Provision for Family and Dependents) Act 1975. Such a claim can be brought by anyone dependent on the deceased. After application of the intestacy rules, no reasonable financial provision was made for them.
- The other circumstance is when a beneficiary under the intestacy rules can give up their right to benefit by agreement as a beneficiary under a will. Depending on the circumstances, various other individuals entitled to benefit under the intestacy may also need to agree.
What should I do if I can’t find someones will?
Several avenues should be explored when you think someone left a will, but you cannot find their will. Before making any assumptions, the first step is to enquire with the deceased solicitor (if they had one) and conduct a thorough search of their house.
In a scenario where you still cannot find a will, it’s beneficial to reach out to a probate solicitor to help you locate the will. A probate solicitor will notice in the Law Society Gazette, search commercial wills registers, and search the probate registry local to the deceased.