What happens if someone dies without a Will?

When someone dies without leaving a valid will, what happens to their estate (so everything that they owned upon their death) will depend on the ‘intestacy rules’ for the country they lived in. Usually, it will go to their spouse or another close family member – but there are important key differences depending on where you live, even across the UK.

• It is very important to make certain that no will exists, before distributing an estate under the rules of intestacy or before making a claim to an estate.
• If a Will does in fact exist, it will name the Executor* and Beneficiaries* that the person who passed away wished to leave their estate to.

Executor*: a person or institution appointed by a testator (a person who makes the will) to carry out the terms of their will. 

Beneficiaries*: people who derive advantage/‘benefit’ from something, in this instance, a person’s will. 

• It is not uncommon for the person who wrote the will (the testator), not to share that the Will exists or even where it is located. This can result in complications when they pass away and it is not uncommon for estates to be treated incorrectly as ‘intestate’ in circumstances where a will may not be found. 
• If you are distributing an estate for a loved one you are financially liable for any errors made during distribution. You therefore should take steps to understand whether or not a Will existed prior to applying for Letters of Administration* to protect yourself.

Letters of Administration*: a document issued by the probate registry, which gives the administrator the legal authority to deal with the estate. 

• To do this you can use Certainty the National Will Register to check to see if a Will exists. Certainty the National Will Register is The Law Society’s provider of a National Will Register for England and Wales. 
• A Certainty Will Search checks to see if a Will was registered at the National Will Register and also searches nationally for Wills held by solicitors and Will writers that have not been registered. 
• There is a small charge for a Will search which can be claimed back from the estate as it is a legal disbursement and you receive a Certainty Will Search report. 

It is important to retain this report as it provides evidence that you took the necessary steps to understand if a Will existed and therefore protects you. www.nationalwillregister.co.uk

The rules on what happens if you die intestate in England and Wales are pretty simple. You can use our intestacy rules flowchart here for quick reference, or skip ahead to a more detailed explanation.

Intestacy doesn’t often work for the families left behind. That might be because there are cohabitees or step children who are ignored or perhaps there are children under 18 who have inherited parts of the estate that the surviving spouse needs (particularly with shares in a house). So what next?

First things First – Make sure the application of the Intestacy Rules are clearly understood and everyone knows who gets what.

1. Use our flowchart on the previous page to work this out.
2. If you have incomplete family trees or need to trace family members we would suggest using professionals to do this – Title Research (www.titleresearch.com are excellent and only charge for what they do, not a contingency fee).
3. If the distribution under the Intestacy Rules doesn’t work for your family, you have 2 options. In order of preference:

Option 1 – Vary the terms of Intestacy?

Whilst Intestacy Rules are strict, it is possible to change the effect of them if ALL the beneficiaries who are entitled AGREE AND CONSENT to change how the estate is divided to a different arrangement.

This agreement to vary needs to be dealt with by a legal document known as a Deed of Variation* which your legal advisors can help you with. Some important things to note:

• It is only possible for a Deed of Variation to be executed within 2 years of the date of death of the the person who passed away.
• It only works if ALL the beneficiaries entitled under intestacy agree and sign the Deed.
• If some of the beneficiaries entitled under the Rules of Intestacy are under the age of 18 years, they cannot obviously sign the Deed as they are children – to get to the same position you will need help in making an application to court for the new settlement to be approved – it is more expensive but certainly possible.

Option 2 – Application under the Inheritance (Provision for Family and Dependents) Act 1975 (“1975 Act”)

If a variation has not been possible as the party in need of greater provision faces opposition, then they may have the right to bring a claim under the 1975 Act.

The 1975 Act gives the court power to vary the terms of intestacy to provide reasonable financial provision to a qualifying person. Things to note about 1975 Act claims:

• A qualifying person includes surviving spouses/civil partners, former spouses, cohabitees, children and financial dependents.
• The the person who passed away must have died whilst domiciled in England or Wales.
• The claim must be brought within 6 months of the date of the Grant of Letters of Administration – outside that time limit you will need court permission to issue!
• Reasonable financial provision means different things for different classes of applicant.
• Expert legal assistance recommended – we can help.

Deed of Variation*: allows beneficiaries to make amendments to their entitlement from a Will after the testator has died.

To help assess whether or not a claim under the 1975 Act is open to an individual suffering under the Intestacy Rules, we have built a 1975 Act Claimchecker! 

It is a totally free online service that sits on our website – just respond to the simple questions and prompts for the suffering family member and the software will do the rest – providing an initial indication as to whether or not that family member can bring a claim or not! 

The intuitive service can be found here. Alternatively, just give us a call or use the contact us email facility and we will give you a call straight back.

Try it out yourself here