Intestate Estates - Lessons from Case Law

There are a number of legal issues that can present themselves upon a bereavement, which can make an already stressful and upsetting time for a family even more painful. One of the biggest sources of heartache in the wake of a loved one’s death is when the family realise that the deceased did not make a Will before they died and therefore, they died intestate.

The loss of entitlement to a portion of an estate is not just a monetary loss – it can result in the assets that meant so much to the deceased being distributed to individuals who might not appreciate their importance or sentimental value. For people living in border communities on the island of Ireland, or even people who have assets in both Irish jurisdictions – a holiday home, for example – this can lead to an even greater degree of pain and confusion. Having to make sense of what exactly the deceased owned in either jurisdiction can be an excruciating process, which can take many months or even years. Hearings at Court dealing with an intestate person’s estate can put an immense strain on family relationships, especially if the same process needs to be repeated before the courts in a different jurisdiction. In this article, we will briefly discuss the laws of intestacy in both Northern Ireland and the Republic of Ireland, explore who is entitled to claim part of an estate in the event of an individual dying intestate, and how best to avoid such a scenario from arising.

The law of intestacy in Northern Ireland is governed by the Administration of Estates (Northern Ireland) Act 1955. If an individual dies in Northern Ireland without a valid Will, the first step is to apply to the Probate Office for a letter of administration. It is possible to make a personal application, however, trying to locate all the deceased’s assets, and take into consideration all the legal requirements, can be extremely complicated. Therefore, it is strongly advisable to instruct an experienced Probate Solicitor to assist with the administration of an estate.

In Northern Ireland, the value of the estate is key to establishing entitlement to inheriting either part or the entirety of the estate. If the intestate person owned assets worth under £250,000 then the entirety of their estate passes onto their surviving married spouse or civil partner. If they were not survived by a spouse or civil partner but were survived by their children, then the entirety of the estate is divided equally between them (or their children’s children if the intestate person survived one or more of their children). For estates worth over £250,000, the surviving married spouse or civil partner does not automatically inherit everything. Instead, they are entitled to inherit the intestate person’s personal chattels, £250,000 tax free (up to £450,000 if the deceased had no children) and then a remainder share of the estate of either one-half (if the deceased had only one child) or one-third (if the deceased had more than one child). This is a general overview, with many more aspects – such as inheritance tax – to consider for the estate to be administered both legally and properly. If the intestate person had a partner, but they were not married or in a civil partnership at the date of death, the surviving partner has no automatic entitlement to the deceased’s estate. Disputes arising over the division of an intestate person’s estate can be brought before the courts under the Inheritance (Provision for Family and Dependants) (Northern Ireland) Order 1979. However, these proceedings can be lengthy and costly, and there is no guarantee that the Courts will agree with the position of the applicant.

In the Republic of Ireland, the administration of estates is governed by the Succession Act 1965. This legislation pays particular attention to Article 1 of the Irish Constitution, which provides constitutional protections to the “family” unit. The married spouse of the deceased person is especially protected by the contents of the legislation. Under section 67 of the Act, the surviving married spouse of a deceased person is entitled to two-thirds of their estate, with the remaining third divided between the children of the deceased. If the deceased had no children, then the entirety of the estate is due to the surviving spouse. If the intestate individual had no spouse, or if they were the surviving spouse, then the entirety of the estate is due to the intestate individual’s children, whether they were the issue of marriage or not, per the Status of Children Act 1987. If a couple are in a non-marital relationship and one of the parties dies intestate, whilst they have no succession rights under the 1965 Act, they can apply for provision to be made for them under Section 194 of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010. However, this can lead to lengthy court proceedings if this application is contested and may result in the cohabiting partner being awarded less than the two-thirds share married spouses can receive.

There are separate provisions in intestacy law for persons who die intestate without a spouse, partner or children, and these classes extend to parents of a deceased person, then siblings if both parents are deceased, and so on. A Probate Solicitor can advise on how exactly any one estate should be distributed, depending on the make-up of that family.

After discussing the conflict that can arise between contesting claimants to an intestate person’s estate, the question arises – who would willingly put their family through this hassle? The answer is, not many. Whilst some may choose to die intestate on purpose, the vast majority of people who die intestate simply “didn’t get around” to having their Will written. The only way to prevent dying intestate is to get a Will written. Younger and middle-aged people should especially consider getting a Will written because this age demographic is traditionally less likely to have a valid Will, although this trend has been reversing in recent years.

The best way to prevent any issues from arising with your Will is to make sure that a qualified solicitor has drafted the document. According to money saving expert Martin Lewis, solicitor-drafted Wills are the “Gold Standard,” with professional-grade quality assurance ensuring the correct terms and provisions are included to avoid confusion or ambiguity. Instructing solicitors who specialise in both Irish jurisdictions, ensures that both sets of legal principles and statutory requirements have been met, giving you peace of mind as to how your assets are dealt with and that your wishes are adhered to.

Caldwell & Robinson Solicitors has a specialist team of Probate lawyers qualified to practise in both the Republic of Ireland and Northern Ireland who would be happy to assist with drafting your Will and to provide advice on estate planning.