If you die without a will, is your property going to be distributed fairly?
If you die and you have not made a will, you will be deemed as dying 'intestate'. Your property will be distributed in accordance with the Administration of Estates Act 1925 ('AEA'). This debate looks into the provisions within this act and assesses whether or not the distribution provided for is fair or not.
You can also add to the debate by leaving a comment at the end of the page.
civil partners are now on equal standing with married couples.
Due to the enactment of the Civil Partnership Act 2004, all legislation that refers to married couples, spouses, husbands, wives; they are deemed at law to also include civil partners whereby the couple have registered their relationship at the appropriate registry[[s131 Civil Partnership Act 2004]]. This gives same sex couples the same protection as heterosexual couples. This makes the relatively old law of the Administration of Estates Act 1925 up to date with current family situations. This renders the Act fair on same sex couples.
This is great for same-sex couples who largely opt for civil unions because marriage is out of the question under most legislation.
However, for people putting marriage off to avoid joint accounts etc
it's terrible. What about people married to one person and living with another? Are both partners given the same amount of money.
What about secret marriages and unofficial civil unions? This amendment means spending long hours of a civilian's valuable time with a lawyer(who incidentally won't be pro bono) to discuss detailed clauses and then coming again every time there is a new legislative development: inconvenient.
"Schedule 20 recognizes certain overseas unions as equivalent to civil partnerships "
Do these include secret marriages with foreigners?
How do partners stake their claim when they possibly don't even know English??
While rights are vaguely outlined; the process for exercising those rights is even more vague. Who qualifies who doesn't; do the people who qualify know that they do? questions,questions.
The implementation of this when morally required is impossible in the most crucial cases.
includes adopted and illegitimate children
Since the introduction of the Adoption Act 1976, adopted children are treated as equal to biological children. In addition, the old Administration of Estates Act 1925 ('AEA') was also amended to state that illegitimate children were also treated as equal to legitimate children[[http://www.statutelaw.gov.uk/content.aspx?LegType=All+Legislation&searchEnacted=0&extentMatchOnly=0&confersPower=0&blanketAmendment=0&sortAlpha=0&PageNumber=0&NavFrom=0&parentActiveTextDocId=1239280&ActiveTextDocId=1239305&filesize=29179]]. Whilst the terminology may be inconsistent with today, the AEA still has the old wording of legitimate children. The acts that amend the AEA have their effect when the courts are applying the law and so those who are administering the estate are bound by it.
To prove that a illegitimate child is a man's own; he has to willingly take a test which may or may not be 100% or conclusive.
Without proof illegitimate children which not be counted as heirs or will they?
spouses and civil partners can elect to get a lump sum instead of a life interest
The spouse or civil partner that is left behind is entitled to all the personal chattels, a statutory legacy (a lump sum) and 50% of anything that is left after that as a life interest. A life interest means that whilst the spouse/civil partner may be able to use the property, or receive income from the money via investment, they are not allowed to dispose of that property/money. So if they had a life interest in a lump of money, they would not be able to spend it, instead they would have to place the sum away and only get the interest from it. However, under s47A[[inserted by Intestates' Estates Act 1952 s.2(b)]] AEA the spouse/civil partner could elect to receive a lump sum of that money based upon a calculation of how much they would have earned if they lived to their life expectancy and the money was placed in a reasonable investment scheme. This is worked out methodically by actuaries, and the spouse will receive a lump sum of that estimate. This ensures that the partner is well catered for.
This is not fair to those who were due to receive that lump sum of money upon the death of that spouse. If there were children, these would have been entitled to the whole lump sum upon that spouses death. If there were no children, then it would be the parents or the siblings of the person who died and left the property behind. It is not fair that the spouse can lower the amount that these classes of people are entitled to just so that they can get one lump some of money. It would be fairer if the spouse or partner could not do this; they already get full entitlement to their 'statutory legacy'[[250,000 if there are children, 450,000 if there are no children]], this should be enough!
spouses and civil partners can elect to buy the family home
Under Schedule 2 of the Intestate's Estates Act 1952, the spouse or civil partner is given the opportunity to 'appropriate the family home'. This means that before the estate is passed on to whoever is entitled after the spouse has received their statutory legacy, the spouse can choose to buy the interest in the house so that it does not have to be sold. The spouse does not get this right for free, they must pay for whatever share is passing under the estate. This means that other people who are entitled under the rules of intestacy, such as children or the parents of the deceased will still be able to get money for their interest. The spouse will not be able to take this benefit away. The rule merely allows them to keep their family home and ensures that they do not have to sell the property.
This is not fair because if the person who dies really wanted the spouse to own the property, they would have bought the property in both of the couples names as a joint tenancy. This would mean that upon the death of the partner, the property would automatically pass to the spouse under the rules of 'survivorship' [[http://legal-dictionary.thefreedictionary.com/Joint+Tenancy]] without the property having to be subject to the intestacy rules. If the property was not held in this way, surely we can assume that this is not what the deceased intended and we should make our best endeavors to effect what the intestate intended.
If you die before the intestator, your benefit will pass to your children.
As a brother or sister, if you are entitled under the rules of intestacy and the strict order of entitlement [[s.46 AEA1925]] but you die before the person to whom the property belongs (you predecease the deceased) then it is your children who receive your interest. This is fair as it ensures that people who would have been entitled but for their death, they still get an interest by way of ensuring that their children are catered for.
This cannot be fair. Those children may not have known the person who died to whom the property belonged. This stops closer relatives who may have known the deceased from being entitled to the property. Under the strict order of entitlement, brothers and sisters come before half brothers and sisters. So if an interest were to go to those half brothers and sisters were it not for this 'predeceasing the deceased rule' then the half brothers and sisters would get the entitlement. As it stands, a child of the predeceasor who probably had a smaller amount of contact with the deceased, would get the interest whilst the half brother or sister who grew up with the deceased would get nothing.
Property can be owned in certain ways to effect your intention upon death
If you own a house, or even bank accounts there are two ways in which you can hold the property. The way in which you choose in your life to hold that property will effect how that property is distributed upon your death. If you hold your house, bank account or even your car on a beneficial joint tenancy, with someone, they will keep the whole of that property upon your death[[http://library.findlaw.com/2000/Apr/1/129100.html]]. This person need not be your spouse, you can elect to hold property as a joint tenant with anyone you wish including remoter family members or even business partners. If you choose instead to hold the property as a tenancy in common, it means that in your life you share the property but upon death the property will be distributed according to your will or according to the strict order of entitlement [[s. 46 AEA 1925]].
This rule of survivorship under the joint tenancy can actually frustrate the deceased's intention. If they wished their children to hold some part of the property, but they held their marital home on a joint tenancy with their spouse, should their spouse remarry, and elect to hold the property on a joint tenancy with their new partner, it would be the new partner who would get that property upon the death of that spouse, not the children.
Insurance policies written in trust will be given effect to even if no will.
The making of a will is a tiresome task. It also requires you to assess what assets you are likely to have upon death. For this reason many people do not bother. However, people can make an insurance policy written in trust in order to give effect to their intention upon death. This is where a sum of money or an investment is placed in an insurance policy and how that policy is to be distributed is stated on a trust deed. The trustees (the people who look after the investment) will be the ones to distribute that property upon your death. They will do so in accordance with your written instructions on the trust deed. In order for the trust deed to be effected, all that is needed is your death certificate. The trustees will hold the other relevant information. The investment will not pass under the rules of intestacy and so that property will pass fairly; in accordance with what your intentions were. There are few hassles with this in comparison to making a will as you will not have to seek solicitors, the life insurance company will take care of all the documentation for you.[[http://www.whatprice.co.uk/financial/life-insurance-trust.html]]
There is no clarification on how this will be done; will legal heirs
have to chase insurance companies,banks etc to get their share or will the legislative bodies or insurance companies handle everything for them( very improbable).
Since the former is most likely the case, how effectively this will be put in effect is questionable; as most people don't know where to go for what and insurance companies are notorious for creating problems with paperwork and confusing jargon.
While it is easy for you to write in trust rather than write a will; it may not be easier for claimants. Who will get direct payment only once they make the claim. [[http://www.whatprice.co.uk/financial/life-insurance-trust.html]]
You can have a discretionary pension scheme
A discretionary pension scheme will often be offered by your employers. In fact, the Government offer such schemes to their civil workers [[http://www.lda.gov.uk/Documents/Public_Item_02_5_Local_Government_Pension_Scheme_Discretionary_Policies_8475.pdf]]. This is where you can set aside a lump sum to your employer and express a wish as to how the money is to be distributed upon your death. It is not a will as you do not have to detail exactly where the lump sum is to be distributed, but you can give a general indication.
This can cause a problem if you have an unusual family set up. Most employer discretionary pension schemes will assume that you want the money to go to your spouse or civil partner and so the trustees, with their discretion, will be able to apply the property how they see fit, only taking your wish as a general indication. You would need to make it express that you do not want the spouse to inherit upon your death; even then there is no guarantee if no one is there to contest the distribution against your wishes.[[http://www.parkhousesolicitors.co.uk/divorce1.htm]]
If you anticipate death, you can make “donatio mortis causa”
Donatio Mortis Cause ('DMC') is a gift made in anticipation of death. You state whilst you are alive that you expect death, and that upon your death that person is to have the specified gift absolutely. This will not pass under the rules of intestacy and so your intention will be given effect to. If you should survive, say if the doctors were wrong, or you recovered, then the gift would not be valid and you would once again be the owner, free to deal with the gift as you like. That is why it is not classed as an ordinary gift. The elected person does not get ownership straight away. Only upon your death. [[http://legal-dictionary.thefreedictionary.com/donationes+mortis+causa]]
The rules on DMC lack authority in English law. There is no certainty with the process. There are strict rules on what the gift is to be, as to the method of delivery of the gift to the donee, and as to whether you contemplated death. This is a risky process and may not result in the fair distribution of your property upon death. Your intention may not be given effect to and instead the property may pass under the strict order of entitlement of the intestacy rules.[[s46 AEA 1925]]
spouses get too much by way of 'statutory legacy'!
The statutory legacy that spouses and civil partners get are way to high! They often stop anyone else getting anything from the estate of the person who died ('the deceased'). If there is a surviving spouse or civil partner they are entitled to receive a lump sum of money. If there are children, this amount is 250,000, if there are no children it increases to 450,000 [[ The Family Provision (Intestate Succession) Order 2008 ]]. This means that the spouse will get this amount before anyone else, even children, get anything from the estate. Bearing in mind that inheritance tax has to be paid, often people will not have more than this amount upon their death – especially with the falling housing prices!! It is not fair that spouses can prevent any other member of the family receiving anything from the estate.
The rates were increased in order to make the system fairer! Prior to the 2008 order, the respective amounts were 125,000 of there were children and 200,000 if there were no children [[ The Family Provision (Intestate Succession) Order 1993]]. The Government had a consultation and many people complained that those amounts were too few bearing in mind that often spouses expected to get everything [[http://www.actlegal.co.uk/news/statutory-legacy-increase-intestacy/]]! In addition, bear in mind that spouses will be the ones who will have to look after their children should their partner die, so it is only right that they are entitled to a large lump sum before any money is put aside for the children's future(as any money they are entitled to if they are under 18 will have to be placed in a trust whereby the money cannot be spent). The amounts were also raised in order to update the laws in proportion to how much equity people generally have. In houses, often people will have more than 125,000 or 200,000; the new amounts serve to reflect this.
It is not fair that the spouse gets all the personal chattels
Before the statutory legacy is calculated, personal chattels are taken out of the equation and given automatically to the spouse or civil partner. This is regardless of whether there are children or not. Personal chattels are held to be [[s.55(1)(x) AEA 1925]] horses, carriages and any stable furniture (you can see that the act is fairly out of date here!); cars and accessories; household and garden furniture including jewellery; musical and scientific instruments; and also wine and consumable stores. This list is extensive and it mean that all keep sakes go directly to the spouse. This prevents the children inheriting anything that would remind them of their dead parent. It also prevents the deceased's parents and brothers and sisters getting any keep sakes. This is not fair with regards to value – sentimental or financial.
Even though the list of objects may seem extensive, they are only objects. Money, shares, or businesses are not included. This means that they will be included in the statutory legacy and therefore will increase the chances of other people who are entitled getting some interest as it is more likely that the statutory legacy will be exceeded. In addition, the likelihood is that the children will be living with the spouse or civil partner and will be on good terms with them, therefore, and person objects they would still have access to. Of course, nothing in the legislation prevents the spouse giving away keep sakes if they wish.
Parents and siblings get too little
The strict order of entitlement seeks to give the most to partners and children of the deceased. The legislation if effected so that the parents and siblings of the deceased are a mere afterthought should there be no civil partner or children. The AEA would be fairer if it sought to apportion the property more equally, rather than granting huge lump sums to particular individuals. This result in a large amount of accumulated wealth in the hands of a few. Instead, the law of intestacy should seek to ensure that all those related to the deceased are catered for, even in a menial way.
They would just have to hope that the partner of the deceased died within 28 days of the death of the deceased[[Law Reform (Succession) Act 1995]]! In order for the spouse or civil partner to be beneficially entitled to any of the chattels, statutory legacy or anything left over, they will have to survive 28 days after the death of the person whom the estate belongs to. If the spouse or civil partner dies within this period, they will be deemed not to have survived the deceased and therefore will not be entitled to anything. Therefore, parents and siblings of the deceased have a chance of getting a larger amount in these circumstances.
If you die before you are 18 you get nothing from the estate!
Under s47 AEA, even the children of the deceased will not be entitled to anything if they fail to reach the age of 18 before death (or marry at 16). The interest is considered as 'contingent' on them reaching that age. This means that they will not be entitled to anything in the estate unless they reach that age. If they fail to reach that age, they shall lose that interest. This can be particularly devastating where a child contracts a terminal illness. They will never get to see what they know they would ordinarily be entitled to.
This is not necessarily true. The people who administer the estate could apply some of the money to which the child is entitled to, even contingently so, in order for their benefit, maintenance or education. Under the circumstances you mentioned of a terminally ill child, anyone administering the estate would want to apply the funds in this such manner.
What do you think?