Estates: wills, intestacy and probate administration
What the exam tests
Estates tests the validity and effect of wills, the statutory intestacy scheme, and the administration of estates from grant to distribution. It rewards precise sequencing: death, grant, collection, payment of debts and tax, then distribution.
Wills and intestacy
A will must comply with s.9 Wills Act 1837: signed by the testator, or by someone in his presence and by his direction, and attested by two witnesses present at the same time. Capacity is presumed but can be rebutted; the test is Banks v Goodfellow (understanding the nature of the act, the extent of property, and moral claims). Knowledge and approval and absence of undue influence must also be shown. Under s.46 Administration of Estates Act 1925, a surviving spouse or civil partner takes personal chattels and a statutory legacy, plus half the residue if there are issue; issue take the remaining half on statutory trusts. Without issue, the spouse takes the whole residue. Relatives take in a fixed order, per stirpes.
Probate administration
Executors derive title from the will; administrators from a grant. The executor's year (s.44 AEA 1925) protects personal representatives from being compelled to distribute before 12 months. They must collect assets, pay funeral and testamentary expenses, debts and IHT, and distribute with receipts. s.27 Trustee Act 1925 advertisements protect against unknown creditors; missing beneficiaries require careful inquiry.
Worked example
A dies intestate survived by a spouse and two children, with an estate of £600,000 including £10,000 chattels. The spouse receives the chattels, the statutory legacy (currently £322,000), and half of the remaining £268,000 (£134,000). The two children share the other £134,000 equally, £67,000 each. The spouse does not take the whole estate because issue survive.
Traps
Marriage revokes a will, but divorce does not; it treats the former spouse as predeceasing. Do not distribute intestate residue before checking the 28-day survivorship rule for spouses. Do not treat the executor's year as a deadline for distribution.