• Andrea Mapstone

Who inherits when someone dies without a Will (and they have been living abroad)?

When someone dies without a valid Will they die ‘intestate’ and the rules of intestacy apply. The intestacy rules provide a strict list of who should inherit from your estate and how much they should receive. Unfortunately, intestacy rules are very black and white and won’t take into account your individual circumstances. For example, they will only recognise surviving spouses, civil partners and blood relatives. If someone dies without a Will whilst living aboard the intestacy rules will still apply and will govern how the immovable assets the deceased left in the UK should be dealt with.

The intestacy rules in the UK are based on common law and will direct who will inherit from the deceased, as well as who should act for the deceased to sort out their affairs on death. Often these people would not be the ones you would choose. Because the intestacy rules only recognise blood relatives, step-children, co-habitees and friends will all be excluded from benefiting regardless of your personal relationships with them.

Another complication which often arises when someone dies whilst living aboard is the matter of domicile. Domicile is notoriously difficult to define but everyone is said to have one. Very broadly speaking, your country of domicile is the country where you were born, where you continue to live and where you intend to die. Everyone is therefore born with a country of domicile, but this can change, and you can obtain a domicile of choice if you move and settle in another country.

Domicile can be hard to pin down in the cases of ex-pats, for example, who retire aboard but still retain strong ties to the UK. Are they now domicile in their retirement country or do they retain their domicile of origin in the UK? It will be important to determine someone’s domicile so that movable assets (like personal possessions) can be dealt with under the rules of intestacy of the correct country. It will be a person’s domicile that determines this and not someone’s residence. Immovable property, however (like homes and land) will likely be dealt with under the intestacy rules of the country where the assets are situated.

Intestacy rules outside England and Wales can vary considerably depending on the country. If the person dies owning a property aboard and without a Will, it will be important that the personal representatives (the people dealing with the deceased’s estate) get specialist advice from a lawyer in that country. The intestacy rules in England and Wales are based on common law but other countries will base their intestacy rules on statute or religious practices so can be quite different.

The best advice is always to make a Will so that the division of your estate cannot be left to chance. If you are fortunate enough to own property in the UK and aboard, then it is best to make a Will in the UK to cover your assets here and also to make a foreign Will to cover your assets held overseas. This way you will ensure that you are able obtain the correct advice from a specialist lawyer in that country before it is too late. Some countries don’t allow the testamentary freedom that the UK enjoys and there may be some forced heir-ship rules which ensure that certain shares of your estate pass to certain people (often surviving spouses and children). It is always best to know about these in advance.

If you are in a position of needing Wills in different countries, make sure that none of these Wills revoke the other. All Wills should contain a revocation clause, which as standard and will revoke all previously made Wills. This essential to ensure that only your latest Will is valid and that any previous Wills aren’t acted upon. However, if it is not drafted correctly, a revocation clause could unintentionally also revoke a foreign Will. This can be avoided by amending the standard clause to ensure that any foreign Wills are excluded from this revocation and remain valid.

Remember, if you are planning to write or update your Will, it is always best to obtain professional advice.

112 views0 comments