Intestacy Rules Simply Explained
September 15, 2020
If a person dies without a will, or if their will is invalid, they are deemed to have died ‘intestate’. This then means that their estate will be distributed in-line with the rules of intestacy.
Whilst naturally this will be a difficult time for all family and friends, it can cause further distress and challenges to understand and navigate the next steps and process ahead.
If you do find yourself in this situation, it is advisable that you seek advice and support from legal experts like ourselves. Our compassionate and understanding team is available to discuss your requirements today.
Also, if you don’t yet have a will, it is strongly advisable that you do so. This not only gives you peace of mind that your wishes will be carried out, but it will support an easier process of your assets being shared via probate.
Below, we’ve rounded up some key points and information to help you gain a better understanding of what intestacy is, the rules in more detail and how you can apply.
What is intestacy?
If a person has passed away without making a will, or their will is invalid, they have died ‘intestate’.
A will can be invalid for reasons such as;
- The person was not well enough, or lacked the mental ability, to make a will
- The will does not deal with all of the person’s assets
- The will was not signed or witnessed in accordance with the law
Without a will, the person’s assets are then left to be distributed in accordance with the intestacy rules.
What are the intestacy rules in the UK?
The rules of intestacy determine who will administer, and who will benefit from the deceased’s estate should they not have a valid will.
The rules apply in England and Wales, and are different for those from Scotland. It’s also worth noting that they were last updated in October 2014 so our information is relevant to those who have passed from this date onwards.
The rules of intestacy, or intestacy law, provides a framework that stipulates who will receive what share of the person’s assets. This does not always go in favour of those family members who the deceased perhaps would have chosen to benefit. This is why it is so important to make a will, and keep it updated, then everything is already documented about how you wish your estate to be distributed.
When does intestacy take place?
The intestacy rules will simply come into place when a person has died without a will.
How does intestacy work? Who inherits with the intestacy rules?
Where there is a surviving spouse and no children, the spouse is entitled to the entire residuary estate.
Where there is a surviving spouse and children, the spouse is entitled to the ‘personal chattels’ (movable property, but not money) of the deceased and a statutory legacy (currently £270,000), including interest from the date of death. The residuary estate, if any, is then divided equally between the spouse (50%) and the children (50% divided between however many children there are).
There is a ‘survivorship period’ imposed for a spouse (a time in which they cannot inherit) of 28-days. If the spouse dies within that time, they are treated as having not survived the deceased. The next class of beneficiary becomes entitled, for whom there is no survivorship period.
Where there is no surviving spouse, the following classes of beneficiaries are entitled to the estate. If there is no-one within a class, the persons in the next class become entitled:
- Initially, the children of the deceased receive the estate. This includes legitimate, illegitimate, and adopted children by the deceased.
A child of the deceased adopted by another person will not be entitled, unless the adoption occurred after the death. Step-children or foster children are not entitled under the intestacy rules.
- If there are no children, the parents of the deceased are entitled in equal shares when both are alive, or solely to the surviving parent.
Where parents were unmarried when the intestate was born and the father (or parent other than the mother) is not named on the birth certificate or any record of birth, there is a presumption that the father, and any person related to the intestate solely through their father, died before the intestate unless the contrary is shown. This means that it may not be necessary to attempt to locate a missing father, or any other relatives on the father’s side, unless there is evidence that they are alive.
- If no parents survive, siblings described as ‘of the whole blood of the deceased’, meaning siblings who share both parents, or their issue, are entitled. If a sibling has died before the intestate, leaving children of their own, these children will benefit in their place, sharing their late parent’s entitlement.
- If no whole blood siblings survive, siblings of ‘half-blood’, meaning with one parent in common with the deceased, or their issue, are entitled. The half-blood siblings may be related to the deceased through their mother or father.
- If there are no siblings of whole or half blood, the grandparents of the deceased receive equal shares of the estate.
- If there are no grandparents, then aunts or uncles of the whole blood, or their issue, will be entitled to an equal share of the estate.
- If there are no aunts or uncles of the whole blood (or their issue), then aunts or uncles of the half blood, or their issue, will be entitled to an equal share of the estate.
- If there are no aunts or uncles of the half blood or their issue, then the Crown, Duchy of Lancashire or Duke of Cornwall, will inherit. The Treasury Solicitor will deal with the estate.
Can intestacy rules be challenged?
If someone feels that the deceased person might have left something for them had they made a will they can make a claim under the Inheritance (Provision for Family and Dependants) Act 1975.
The most common examples of claims brought under the Inheritance Act are;
- common law spouse, someone who was treated as a child of the deceased but no legal adoption
- someone who was partly or wholly dependent on the deceased immediately before death.
A claim under the act must be brought within 6 months of the Letters of Administration being granted.
How to apply for Letters of Administration when a person dies intestate
If someone you know has died without a will and you wish to become the administrator, you will need to apply for a ‘grant of representation’ which if successful will provide you with the important ‘letter of administration’ that is required.
This usually falls down to the spouse, or next of kin of the deceased.
The process is fairly complex and it does require any actions to be carried out in-line with the intestacy laws. Due to this, it is strongly recommended that you seek expert advice from a wills and probate solicitor such as ourselves.
For more information regarding applying for intestacy or probate, please speak to a member of our team.
What is partial intestacy?
Partial intestacy is when a person dies leaving a valid will but the will does not dispose of all of the deceased’s assets. When this situation arises the intestacy rules will apply to the assets that have not been included in the will.