Intestacy

By Tolley
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The following Trusts and Inheritance Tax guidance note by Tolley provides comprehensive and up to date tax information covering:

  • Intestacy
  • Entitlement on intestacy
  • If the deceased is survived by a spouse or civil partner but no issue
  • If the deceased is survived by a spouse or civil partner and issue
  • If deceased is not survived by a spouse / civil partner
  • Definitions of terms

Intestacy occurs on death where:

  • the deceased did not make a valid will
  • the will was revoked (either expressly or by operation of law)
  • the will does not dispose of all of the estate, or
  • all the beneficiaries pre-deceased the testator

A partial intestacy arises where there is a valid will but it does not effectively dispose of all parts of the estate. This would happen where, for example, a residuary beneficiary has pre-deceased the testator and there is no effective substitutional gift. In a partial intestacy, the intestacy rules are applied to the intestate portion only.

The rules on this matter are set out in AEA 1925, s 46, as amended by the Inheritance and Trustees' Powers Act 2014. The rules may be set aside under an order of the court issued under the Inheritance (Provision for Family and Dependants) Act 1975. See the Court orders under the Inheritance Act 1975 guidance note.

The current rules, as described below, have been in force since 1 October 2014. Prior to that date, the structure of entitlement on intestacy was similar but certain thresholds and interests were more limited. It is noted below where the current provisions are different from the previous regime.

Property owned as a joint tenant does not devolve under the intestacy rules but passes to the surviving joint tenant under the survivorship principle. By contrast, the share in property owned as a tenant in common may be subject to the rules on intestacy.

Entitlement on intestacy

If a person dies intestate, the way in which his property is to be distributed is determined by which relatives survive him. The rules vary according to whether he leaves a surviving spouse or civil

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