Intestacy

Intestacy

When a person dies without leaving a Will or where their Will is found to be invalid, they are then considered to have died ‘Intestate’ and their estate will be distributed according to the Intestacy rules.

Under these rules spouses, civil partners and other close relatives can inherit, however it depends on the familial circumstances at the time of their death and on the value of their estate.

Spouses and Civil Partners:

For a spouse or civil partner to inherit under the intestacy rules they must actually be married or in a civil partnership with the deceased. If the spouse is divorced, or the civil partnership was dissolved then they cannot inherit. Being separated will not bar a spouse or partner from inheriting and the rules will apply fully in those circumstances.

The rules of intestacy’s after 1 February 2009 in relation to a spouse or civil partner are:

Deceased dies without children but has parents or full brothers and sisters or children of those brother and sisters, then the spouse or civil partner will get:

  • All the personal property and belongings of the deceased;
  • The first £450,000 of the estate; and
  • One half of the remainder of the estate.

Deceased dies leaving children, then the spouse or civil partner will get:

  • All the personal property and belongings of the deceased;
  • The first £250,000 of the estate; and
  • A life interest in half of the remainder of the estate. This means that they will be entitled to the interest or income from that money, but will not be entitled to the capital itself.

 Where the spouse or civil partner had jointly owned property, what happens to that property will depend on how it was jointly owned. A house can be jointly owned as Tenants in Common or as Joint Tenants. If the parties were Joint Tenants then the half of the house belonging to the deceased will automatically pass to the spouse/civil partner outside of the estate, so this value will not be calculated when looking at the initial £250,000/£450,000 of the estate which is to go to them.

However if the house is owned as Tenants in Common, then the half of the property belonging to the deceased is part of his estate and its value will be included in any calculation for the initial £250,000/£450,000 which is to go to the spouse or civil partner.

Children

For the rules of intestacy children include legitimate or illegitimate children and adopted children. It should be noted that children under 18 do not receive their inheritance immediately, rather it will be managed by the Trustee of the estate until they reach the age of 18.

The rules of intestacy after 1 February 2009 in relation to children are:

  •  Where there is no spouse or civil partner they will inherit the entire estate in equal shares shared out amongst all the children of the deceased, even those who are from a different relationship.
  • Where there is a spouse or civil partner then they will inherit straightaway half of the deceased’s estate that exceeds £250,000, and then the other half on the death of the spouse or civil partner.

Grandchildren

Any grandchildren or great grandchildren can only inherit from the estate of one who has died intestate when their parent or grandparent has died before the intestate person. At that time the grandchildren/great grandchildren will inherit the share of the estate which would have gone to their parent/grandparent. Such amounts will then have to be split equally between all the grandchildren/great grandchildren.

Other Relatives

Other relatives will only inherit under the intestacy rules where there are no children of the deceased. In that case the rules of intestacy’s after 1 February 2009 in relation to close relatives are:

  • Where there is a spouse or civil partner they will receive half of the remainder of the deceased’s estate over £450,000.
  •  Where there is no spouse or civil partner they will receive the entire estate.

There is a hierarchy of relatives which the rules of intestacy is based on, meaning that the above provisions will go to the closest living relatives within that hierarchy and will only pass to the next level of relative should there be no living relative on that level. The hierarchy is:

  • Parents.
  • Brothers and Sisters.
  • Nephews and Nieces.
  • Grandparents.
  • Uncles and Aunts.
  • Half Uncle and Aunts.

Eventually, if there are none of the above relatives alive, nor any of their children to whom it could pass, then the estate passes to the Crown. This is known as Bono Vacantia.

Changing the Rules of Intestacy

It is possible to vary the way the deceased’s estate is shared out by making a Deed of Family arrangement or variation, however this must be done within two years of the death of the deceased. Additionally all the people who would have inherited under the rules of intestacy must agree and sign the Deed.

If everyone is in agreement then the estate can be shared out in a different way than under the rules so that people who would not usually inherit will, or the amount they would normally get will be altered.

Possible Reform

A great number of people in a relationship who are not married or in a civil partnership do not realise that they will not automatically inherit under the rules of intestacy as they currently stand.

The Law Commission has recently put forward proposals to allow cohabitees to automatically inherit where the survivor has lived with the deceased for five years just prior to the deceased’s death where they had no children, or where they lived together for two years prior to the deceased’s death where they had children. This provision would not apply where the deceased was still married or in a civil partnership with someone else at the time of death.

It should be noted that these remain only proposals by the Law commission, so the rules of intestacy as they are currently remain in force. It therefore remains that the best way to provide for those you love after your death would be to make a Will.

This article courtesy of Darlingtons Solicitors, who provide a range of cost effective advice and services on wills, applying for probate and many other areas of law.

Solicitors from hell – the sequel

Readers may be familiar with the saga of the solicitors from hell website. A disgruntled client of a law firm started the site and it became pretty powerful with literally hundreds of vitriolic comments about a large number of solicitors and their law firms.

We’re certainly not saying that many complaints about solicitors are not merited, although as with every walk of life and every profession, there are good and bad. The issue which many had with this site was twofold :-

  • comments were not checked or modified, there was no objectivity and much of the content was slanderous.
  • the owner of the site starting demanding money from solicitors who complained to him and wanted their names removed from it. In fact, we also believe that the owner was charging money for advertising on the site also.

In any event, the owner clearly had a major beef with the whole legal profession, so much so that he also took on the Law Society. That case went to court quite recently, he lost, and was ordered to take the site down, and it also appears he may be insolvent. So, story over.

Apparently not. whilst browsing for legal content this week, we found a new website, www.solicitorsfromhell2.com (we would normally post a link, but in this case, out of principle, we are not going to directly boost that site in the search rankings). We haven’t yet checked on whether the owner of this new site is the same person, we would doubt it, and we have no idea what agenda the owner has, if any, but they certainly seem to be asking for trouble if they want to persist with this site, bearing in mind what happend to the original site.

What was interesting also about the original site is that many solicitors considered legal action (and some started it) to try and get the site taken down, but as it was hosted abroad, there were jurisdictional issues, which demonstrates just how complex these type of cases are and how the web remains very difficult to police.

If you have any interesting comments either on the original site, or it’s apparent successor, please do contribute.

 

 

Funding arrangements – risks for 3rd party funders

Funding arrangements – interesting new case

For the average person or small business, having what appears on the face of it to be a strong legal case is one thing, being able to pursue it is another. Not only do many cases involve situations where a prospective claimant can’t afford his, her or it’s own legal costs, but there are other expenses, in legal terms called disbursements, which will need to be paid. These can typically include :-

  1. Court fees
  2. Expert fees
  3. Barrister’s fees
  4. After the event insurance costs protecting against a costs order in favour of the defendant

There are some types of claims where the above issues do not cause a problem, typically personal injury claims as solicitors not only agree to deal with the case on a no win no fee basis but they also subsidise the other costs and recover these at the conclusion of the case. Why do they do this ? Simply because the prospects of success, on a pure “numbers game” basis are good enough.

But what happens where, for one reason or another, either after the event insurance against the opponent’s costs is either not available or not taken out ? In other words, what happens if the claimant loses without cover against the defendant’s costs where it appears the claimant’s solicitor has otherwise financially supported the case ?

In the above type of situation, the defendant’s may apply for an order that the solicitors pay their costs on the basis of being a 3rd party funder of the claimant with a potential financial benefit from the litigation.

This is all particularly relevant given a recent High Court Order on this issue which went to appeal. In this case, the High Court has ordered the solicitors in question to provide disclosure of the funding of their clients unsuccessful case

This ruling has proved quite controversial.  In the lower court the Judge thought that such orders “could be to undermine or perhaps even to destroy the workings of the CFA system”, but the upper court disagreed.

Ultimately, the ruling was based on public policy and we think it is logical that if a case is being funded by a 3rd party behind the scenes, whether  as solicitor firm or otherwise, in circumstances where the case would not otherwise go ahead, they should accept the risk if it all goes wrong.