Articles on the rules of intestacy generate interest – whether it is people wanting to understand more about them for their personal lives or as part of their professional role, it’s a subject seemingly still shrouded in a little mystery.
It’s not just from those working in the Private Client world, either. In a recent video published on the Today’s Wills and Probate website on the very topic, we were struck by the number of viewers from other areas of law, such as Conveyancing and Family Law. Of course, the rules of intestacy have an impact in these worlds, too, but it’s easy to consider it as just a probate-related matter.
As a reminder, intestacy is when someone dies without a valid will being in place. The rules of intestacy are effectively a pre-defined order of who is entitled to inherit. Generally speaking, there is no way of altering the priority order. The rules also cover instances of partial intestacy where a valid will does not deal with all of the deceased’s estate.
The term “blended family” is not recognised under the rules of intestacy. Nor is there provision for more modern family dynamics such as step children or foster children. Yet they do recognise fully adopted children, including step children who have been adopted in by their step parent.
Perhaps most infamously, the rules make no recognition of cohabiting couples who are not married or in a civil partnership i.e. occasionally referred to as “Common Law spouses”. This can turn out to be particularly troublesome, given that the cohabiting couple is the fastest growing living arrangement in England and Wales.
And on the cohabiting point, it’s again a mistake just to consider this as an estate issue. But it’s not. With no will in place, the rules of intestacy make no allowance for the deceased’s wishes. This can leave the family dynamics post-death in a legal flux following the emotional trauma of the death of a life partner.
It’s probably worth going back in time to help understand the rules as they currently are. The rules of intestacy were passed into law 98 years ago in 1925 as part of The Administration of Estates Act. Things were very different back then. It was only seven years on from the end of World War I and the population in England and Wales was around 40 million.
Top male jobs in this era were Agricultural Labourer, followed closely by General Labourer. For females, it was Domestic Servant, Clerk, and Shop Assistant. Even the names were different – whilst the most popular boy’s names were John, William, and George (the latter two still popular today), compare this to the most popular girl’s names of the time: Joan, Mary, and Margaret.
It must be considered that society was different. By and large, only married couples lived together, with a general view in society that only married couples should have children. Getting divorced was seriously frowned upon, particularly for women.
In effect, there was no such thing as an openly cohabiting couple in 1925 – you either lived with your spouse or you lived with your family. It was quite unusual for there to be “blended families” back then as there are today. As a final note, it’s also worth pointing out that rules here in England and Wales are considered more generous that those applied in some other countries, by enabling first cousins removed a number of times to actually become a beneficiary prior to the Crown.
So, whilst out of step with modern day society, do these rules of intestacy entitlement order make a little more sense from a historical viewpoint? They haven’t kept up, that much is true.
Do you need any assistance around the rules of intestacy? Please see our flowchart which clarifies the order of entitlement that we hope you find useful.
This article was submitted to be published by Anglia Research as part of their advertising agreement with Today’s Wills and Probate. The views expressed in this article are those of the submitter and not those of Today’s Wills and Probate.