Background

Government increases the Statutory Legacy for Intestacy

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So should you still make a Will?

Intestacy is when someone dies without leaving a valid Will. In this situation the intestacy rules govern how and what the deceased owned (their ‘estate’) will pass and to whom.

The rules set the order in which relatives will inherit the deceased’s estate. If the deceased was married, or in a civil partnership, but didn’t have any children then the whole of their estate will pass to their surviving spouse/civil partner. Where they died leaving children then the statutory legacy becomes relevant. Previously the first £270,000 of the deceased’s estate (referred to as the statutory legacy) would pass to the surviving spouse/civil partner together with all their personal belongings and the remainder of their estate is split with 50% going to the surviving partner and the other 50% being split equally between any surviving children.

From 26 July 2023 the statutory legacy increased to £270,000 to £322,000.

Whilst we welcome the increase, our advice to clients remains that the only way to ensure that your estate will go to those you want it to, and in the way you want it to, is to have a valid Will in place. We would recommend using a solicitor to prepare any Wills to ensure everything has been properly considered and given effect in your Will and that you understand the tax implications.

Examples of the shortcomings of the intestacy rules include:

  • Foster children and step-children do not fall within the definition of children under the intestacy rules and would be excluded from inheriting;
  • Cohabiting and unmarried couples not in a formal civil partnership are extremely vulnerable if they do not have valid Wills. In this situation, if one partner dies the other does not automatically inherit under the intestacy rules. Instead relatives will inherit in a certain order;
  • There is no flexibility in the amounts being left and where gifts to friends or charities of your choice may have been desirable there is no provision for this under the intestacy rules; and
  • If you are in the process of divorcing you are only legally not married once the decree absolute has been granted and therefore if you die between the decree nisi and the decree absolute without a valid Will in place your estranged spouse will inherit some or all of your estate, depending on whether there are children.

Having a valid Will allows you to control who should benefit from your estate when you die and also allows you to appoint executors to administer the estate for you. It can also be a useful tax planning tool, minimising exposure to inheritance tax and if appropriate, protecting a beneficiary’s inheritance from divorce or protecting their eligibility for state benefits.

Finally, the intestacy rules are complex and dying without a valid Will can make an already difficult situation much more distressing for those left behind.

For further help and advice concerning a Will, a trust or probate please contact our Wills, Trusts & Probate team on 01832 273506 or email [email protected]

Sally Power TEP, Partner


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