Intestacy – Back to Basics

Intestacy is the term given to dying without a Will.

What is a Will?

A Will is a legal document made valid by the signing and witnessing process. A Will is essentially a written declaration of how you would like your estate to be distributed after your death. In your Will you will make gifts of your property and chattels to your intended beneficiaries. This in effect should ensure that your estate is distributed in accordance with your wishes.

Intestacy – A little more information

Dying without a Will is not the only situation when an intestacy can occur. If a Will is not deemed valid because it was not signed correctly or it is considered that the Will doesn’t reflect the true wishes of the testator (person writing the Will) due to undue influence then there could be an intestacy.

If one of the intended beneficiaries does not survive the testator and there is no provision for this in the will then this could result in the gift failing (a partial intestacy).

Think your Will is valid?

For your Will to be considered valid it needs to satisfy the requirements of the Wills Act 1837 and more specifically S.9. This means it needs to be signed and witnessed correctly. Not doing so can mean that your Will is considered invalid and you die intestate.

Many well meaning people write their Will and then leave it in a drawer, or in the biscuit tin. There is no problem with this providing that it is valid before being stored. Those Wills submitted to the National Will Archive for storage are checked for validity on receipt.

What happens without a Will?

Without a valid Will your estate will be distributed in accordance with some predefined rules. This might not be how you would like to gift your property, whether to your family, friends or even a charity.

The rules that govern intestacy – the Intestacy Rules – are set out in legislation. The Administration of Estates Act 1925 and the Intestate’ Estates Act 1952 are the primary pieces of legislation governing intestate estates.

Please note that if you are not married to your partner and are simply a cohabiting couple then you have fewer rights under English and Welsh law in terms of intestacy.

Who would inherit your estate without a Will?

On the Gov website you can go through the intestacy process to identify who would inherit your estate should you pass away without a Will.

Why should you write a Will?

For more information on why you should write a Will check our recent article: 8 Reasons to write a Will

Who should write my Will?

This decision is completely up to you and you should never be pressured into writing your Will by a professional, friend or family member. Here’s some food for thought:

• You should feel comfortable with the person writing your Will.
• If you are using a professional, don’t be afraid to do your research on them. If they say that they are a solicitor ask for their Solicitors Regulation Authority I.D number and confirm this with the SRA. If the person claims to be a member of the Society of Will Writers, check our website or call our office on 01522 687888