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Patrick Brennan | 27th November 2023

Bona vacantia and how to avoid it


Patrick Brennan | 27th November 2023

Bona vacantia and how to avoid it

You may have, over the past few days, seen articles in the Guardian with sensationalist headlines such as Revealed: King Charles secretly profiting from the assets of dead citizens, triumphantly exclaiming how they have lifted the lid on the “secret” process known as bona vacantia.

The articles, which to be fair, include a helpful explainer on how the bona vacantia (Latin for “vacant goods”) regime operates, would have one think that it is hidden away in one of the many, many, dark nooks and crannies of the UK’s idiosyncratic and largely unwritten constitution.

Far from it, in fact. For those who care to look, the right of the Duchies of Cornwall and Lancaster, along with, for most other cases, HM Treasury, to the assets of those who die intestate and without valid heirs may be found in section 46 Administration of Estate Act 1925, which “clarified” the existing rights of the Duchies, established by mediaeval charters.

Whilst one can of course debate the merits, or morality, of such regimes operating in 21st century Britain, it is hard to agree with the Guardian that it is a “secret”.

How, then, to avoid your assets being used to add to the King’s sorely-needed slush fund or to pay down the national debt? Fortunately, the solution is straightforward – make a Will. Ideally, a solicitor-drafted Will, but any valid one will do.

More to the point, ensure that this Will covers the position should those you expect to inherit your estate not do so, for any reason. No-one wishes to consider a situation in which they are not survived by any descendants or family, but sadly, such situations happen more often than you might expect. Most of us will at some point have been forced by circumstance to watch daytime TV.

Shows such as Heir Hunters show the work of genealogists, and relate to estates where the relatives due to benefit are unknown or cannot be located. The purpose of such work is precisely to avoid the situation in which there is no choice but to pay the monies under bona vacantia.

Why not, therefore, consider including a charity as a “longstop”, or backup, beneficiary? Such a charity would only inherit in circumstances where “none of the above” have survived you, but having such a safeguard built into your Will ensures that, no matter what, your assets will not be used to repair the king’s chapel.

Even if you have numerous relatives who would inherit under the intestacy rules before the king, a Will can ensure that you, not the law, decides which of these relatives should benefit from your estate.

Eagle-eyed readers will also note that the statute which outlines the intestacy rules dates from nearly a century ago. Even with more recent updates, the rules make no provision for so-called “common law spouses”, or non-blood relations such as stepchildren. If it is your wish that you would want to benefit such a person, you must make a Will to ensure that they are protected.

If you would like to discuss making or updating your existing Will, please contact a member of the Wills, Trusts & Estates team.

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