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The Rules of Intestacy – Dying without a Will

Our People - Andrew Guile
24 October, 2022

When someone passes away without a will, they are said to have died ‘intestate’ and the process of administering their estate is referred to as an ‘intestacy’. In these circumstances, the probate process follows a set of rules that dictate how the estate should be allocated among eligible relatives.

In the UK, dealing with probate without a will involves applying for a Grant of Letters of Administration to appoint an administrator who will distribute the estate according to intestacy rules.

Where you are able to pursue probate with a will (i.e. where the person in question died leaving a valid will), the executor named in the will can apply for a grant of probate if they need a grant to fully administer the estate.

What is intestacy?

Intestacy refers to when a person dies without leaving a will that sets out what should happen to their estate. The law provides a set of rules that must be applied when this happens, and those rules determine who inherits the estate.

What are the rules of intestacy?

A person who dies without leaving a will is said to have died ‘intestate’ and their estate (their money and property) will be distributed in accordance with the intestacy rules. Normally, only married or civil partners and some other close relatives can inherit under the rules of intestacy.

What happens in intestacy?

Other than the intestacy rules determining who gets what (rather than your will setting out who gets what), the process of administering a person’s estate is fairly similar including claims that can be brought against the estate by dependents or cohabiting partners (under the Inheritance (Provision for Family and Dependants) Act 1975) and entering into a deed of variation to alter who gets what by agreement of the beneficiaries. 

What do you do if someone dies intestate?

Administering an estate under the rules of intestacy can be complex. If a family member dies intestate, i.e., dies without a will, you’ll need to take legal advice on who can apply to the Probate Registry for ‘letters of administration’ and on how to administer the estate, especially if the value of the estate is more than £322,000.

Who can inherit under intestacy rules?

The following people are entitled to a share of someone’s money, property and possessions if they die without making a will.

Married couples and civil partners

  • Your spouse/partner receives everything if you have no children or grandchildren or great grandchildren, otherwise …
  • Your spouse/civil partner receive your personal possessions + £322,000 (raised from £270,000 on 26th July 2023) + half of anything above that figure. The rest goes to your children (i.e., all children from all relationships and any children legally adopted but not stepchildren) in equal shares.

Children

  • As set out above, your children will receive an equal share of half of the estate once your spouse or civil partner has had their £322,000 + half of the remainder.
  • If the estate is worth less than £322,000, the children will get nothing.
  • Grandchildren and great grandchildren only inherit if their parent or grandparent (who would otherwise have inherited as a child of the deceased) has died before the deceased.

Other relatives

  • If there are no surviving children, your surviving parents will inherit your estate in equal shares.
  • If there are no surviving parents, your brothers and sisters will inherit in equal shares. 
  • If there are no surviving brothers or sisters, their children (your nieces and nephews) will inherit their parents’ share.
  • If there are no surviving brothers and sisters or nieces and nephews, your half-brothers and half-sisters will inherit your estate. If your half-brother or half-sister has died, their children will inherit their share of the estate.
  • If there are no surviving half-brothers and half-sisters (or their children), your grandparents will inherit your estate in equal shares.
  • If there are no surviving grandparents, your aunties and uncles will inherit your estate. If an auntie or uncle has already died, their children (your cousins) will receive their share of the estate.
  • If there are none of the above, your half-aunties and half-uncles will inherit your estate. If a half-auntie or half-uncle has already died, their children will inherit their share of the estate.

What happens if there are joint bank accounts in an intestacy?

Any jointly held bank accounts will pass directly to the survivor as will any jointly held property so long as it was held as joint tenants. If property was held as tenants in common, the deceased’s share of the property will pass via the law on intestacy.

What if you are informally separated in an intestacy?

If you are informally separated (i.e., not divorced), your spouse or partner may still inherit which might mean that your children do not.

What if someone dies intestate and their children are still minors?

When a parent dies intestate and their children are minors (i.e. under 18 years old), their inheritance can be held in a trust for them until they become legally entitled to it at age 18.

Who inherits when there is no will and no children?

If a person dies without a will and with no children, then, if they have a spouse or civil partner, the spouse or civil partner will inherit their entire estate.

If, however, there is no spouse or civil partner AND no children, then the estate will pass in the following way:

  • If there are no surviving children, your surviving parents will inherit your estate in equal shares.
  • If there are no surviving parents, your brothers and sisters will inherit in equal shares. 
  • If there are no surviving brothers or sisters, their children (your nieces and nephews) will inherit their parents’ share.
  • If there are no surviving brothers and sisters or nieces and nephews, your half-brothers and half-sisters will inherit your estate. If your half-brother or half-sister has died, their children will inherit their share of the estate.
  • If there are no surviving half-brothers and half-sisters (or their children), your grandparents will inherit your estate in equal shares.
  • If there are no surviving grandparents, your aunties and uncles will inherit your estate. If an auntie or uncle has already died, their children (your cousins) will receive their share of the estate.
  • If there are none of the above, your half-aunties and half-uncles will inherit your estate. If a half-auntie or half-uncle has already died, their children will inherit their share of the estate.

Who cannot inherit in an intestacy?

By way of example, the following categories of people will not inherit under an intestacy: –

  • partners that are not married nor in a civil partnership
  • family related to you only by marriage
  • friends
  • carers

However, dependents or cohabiting partners can potentially bring a claim under the Inheritance (Provision for Family and Dependants) Act 1975 to seek a court order that they receive a share of the estate.

What happens in an intestacy if there are no surviving blood relatives?

If there are no surviving blood relatives in the UK, the intestacy rules say that your estate goes to the Crown.

When this happens, the money and assets become ownerless, also known as ‘bona vacantia’. A list of unclaimed estates is published weekly to give any living relatives the opportunity to identify inheritance that may be theirs. Millions of pounds currently remain unclaimed. The list can be searched online and stretches back to 1961.

If you think you may be entitled to an estate on this list, you will need to prove your identity and relation to the deceased person. There are companies who try to track down missing beneficiaries of such estates and charge a fee to let you know what they have found.

Do you have to follow the rules of intestacy?

In the UK, rules of intestacy must be followed if you are the personal representative of the estate, i.e., the person or people who have been granted ‘letters of administration’ by the Probate Registry to administer the estate.

However, the people receiving the estate under the intestacy rules (the beneficiaries) can agree to vary what they receive using a deed of variation. A deed of variation can be done at any time but is only recognised by HMRC (were the variation to have tax consequences) if done within 2 years of the death.

Can intestacy rules be challenged in the UK?

You can’t challenge the intestacy rules like you can with a will. However, dependents or cohabiting partners can potentially bring a claim under the Inheritance (Provision for Family and Dependants) Act 1975 to seek a court order that they receive a share of the estate. 

Also, the beneficiaries under the intestacy rules can agree to vary what they receive using a deed of variation. A deed of variation can be done at any time but is only recognised by HMRC (were the variation to have tax consequences) if done within 2 years of the death.

Are all assets subject to the rules of intestacy?

In the UK, not all assets are subject to intestacy rules. These include:

  • Any property or bank accounts owned as a joint tenant (e.g. joint bank accounts) – these pass automatically to the surviving joint owner and do not form part of the deceased’s estate
  • A life policy or pension with a nominated beneficiary – this will pass to the nominated beneficiary outside of the estate
  • A life interest held in a trust – this will pass in accordance with the trust

What is a partial intestacy?

A partial intestacy occurs when someone dies leaving a valid will, but the will does not dispose of all their assets. When this happens, the intestacy rules apply to all assets that the will does not deal with.

What is an intestacy deed of variation?

A deed of variation can be entered into in an intestacy in the same way as it can be if there is a will. However, as with a will, the deed will need the agreement of all the beneficiaries who are affected by it and it is only effective for tax purposes if executed within 2 years of the death of death.

An example of a deed of variation

R dies leaving an estate worth £622,000. Under the intestacy rules, R’s surviving spouse, T receives the first £322,000 of R’s estate and a further £150,000 of the remaining £300,000, thus leaving another £150,000 to be split equally between their two children A and B. A and B therefore receive £75,000 each. However, T decides she does not need the additional £150,000 and agrees to a deed of variation to split this equally between the children, swelling their shares to £150,000 each.

Remember, making a will avoids the rules of intestacy. If you would like any help or advice on intestacy laws in the UK or dealing with the probate process, please do not hesitate to contact a member of our Wills and Probate Team or get in touch on 020 8492 2290.

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