Intestacy – New Rules On the Way?

Intestacy & Family Provision Claims on Death

The Law Commission (December 2011) have published a Report on what should happen when someone dies without a Will and for people living together.

Full details can be downloaded form the foot of this page.

When a person dies “intestate”, that is without leaving a valid will disposing of the whole of his or her property, the distribution of any money and other assets (the deceased’s “estate”) among surviving family members is governed by a set of legal rules known as the intestacy rules.

Family provision
Whether or not the deceased left a will, certain family members and dependants may apply to court for reasonable financial provision from the estate, under the Inheritance (Provision for Family and Dependants) Act 1975 (“the 1975 Act”). This is often referred to as a claim for family provision.

Our recommendations
Our final report was published on 14 December 2011.  It sets out and explains our recommendations for reform of the law and presents two draft Bills to implement the necessary changes.

The draft Inheritance and Trustees’ Powers Bill includes reforms that would:

  • ensure that where a couple are married or in a civil partnership, assets pass on intestacy to the surviving spouse in all cases where there are no children or other descendants;
  • simplify the sharing of assets on intestacy where the deceased was survived by a spouse and children or other descendants;
  • protect children who suffer the death of a parent from the risk of losing an inheritance from that parent in the event that they are adopted after the death;
  • amend the legal rules which currently disadvantage unmarried fathers when a child dies intestate;
  • remove arbitrary obstacles to family provision claims by dependants of the deceased and anyone treated by the deceased as a child of his or her family outside the context of a marriage or civil partnership;
  • permit a claim for family provision in certain circumstances where the deceased died “domiciled” outside of England and Wales but left property and family members or dependants here; and
  • reform trustees’ statutory powers to use income and capital for the benefit of trust beneficiaries (subject to any express provisions in the trust instrument).

The draft Inheritance (Cohabitants) Bill contains further provisions that would give certain unmarried partners who have lived together for five years the right to inherit on each other’s death under the intestacy rules. Where the couple have a child together, this entitlement would accrue after two years’ cohabitation, provided the child was living with the couple when the deceased died.


Intestacy and co-habitation – suggested new provisions