Understanding Wills and Intestacies

If an individual dies without a Will then the next of kin needs to be identified and needs to make an application to the court for a Grant of Administration so that they can administer the estate. The process is almost the same as actioning a Will in so far as the total net value of the estate has to be calculated together with any Inheritance Tax, and the proceeds distributed in accordance with specific laws.

When a person has passed away and the beneficiaries commence the process of administering the estate, there are a number of points to be considered. The information below is intended as a guideline only, for specific details about your case you must seek professional advice on the matter.

When the deceased has not left a valid Will — Intestacy

In this case the beneficiaries must follow the Rules of Intestacy. These rules state that the first person entitled to inherit the estate of the deceased would be the spouse; in the absence of a surviving spouse the following line of entitlement would be followed: the children (or their issue if their parent predeceased the asset holder), then parents, followed by siblings, then grandparents, and finally aunts/uncles.

The line of inheritance through intestacy ends at first cousins (and their issue), and any blood relative below this line is unable to inherit due to the blood link being so diluted.

When the deceased has left a valid Will

If there is a valid Will then we set out to trace the appointed Executors, who are the individuals ultimately responsible to distribute the estate following the stipulations in the said Will. If the appointed Executors are deceased, it is possible to follow the ‘Executors’ line’, meaning that the Executor of an Executor (and so forth) can act for the estate of the original testator.

If the beneficiaries in the testator’s Will survived the deceased but have passed away prior to the time of distribution of the estate then, in absence of a Grant being taken out on the beneficiaries estate, HM Courts Service may accept an application and extend the Grant of Representation to include beneficiaries of the individuals named in the original testator’s Will.

If at the time of death none of the beneficiaries named in the Will were alive to claim the estate of the deceased, then the intestacy rules will need to be applied.

Applying the correct Law

English law will not always be applicable when dealing with the recovery of assets, it would normally depend on a combination of circumstances, namely the nature of the assets in question, the country of residence of the deceased and the country where the assets are registered.

For example, if the assets are fixed, the applicable Law will be the one from the country where those assets lay. If the assets are movable then the law that applies is where the beneficiary is domiciled. Dealing with estates of individuals who owned assets in the UK and abroad are normally somewhat complicated because regardless of what a testator has intended through a Will, the country’s law where the particular assets lay will often override the testator’s intentions.

For example, if a testator resided in Spain, where he happened to own a house, and he also had a house in England, if the testator decided to disinherit his spouse and give his Spanish estate to a third individual, then his spouse, who also resided in Spain, would be able to claim the house in that country because of the forced heirship rules in Spain. However, the spouse would be unable to claim the estate in England. This is because this particular asset is classified as fixed and therefore English law would apply (in England there are no forced heirship rules). The spouse would also be unable to claim under the Inheritance (Provision for Family and Dependants) Act 1975 for a discretionary payment because she was domiciled in Spain and this particular statute does not apply to those domiciled outside England and Wales.