No Last Will: What are the Rules of Intestacy?
The Rules of Intestacy apply where there is no Last Will and testament which is valid in England and Wales. The Rules of Intestacy also apply where a valid Last Will and testament does not dispose of everything the person owned. Their assets (the estate) must be shared out according to the Rules of Intestacy. A person who dies without leaving a valid Last Will is called an intestate person. This is a complicated area, so please just take this as an introductory article. You may want to use the link at the foot, especially if you are looking at an estate in Northern Ireland or Scotland, where we only operate through associated firms.
People dealing with intestate estates are in grave danger of making errors for which they will have personal liability. Sometimes the estate is small and the family close, but where that is not the case we would suggest considering getting at least some professional advice from us.
Please note that the rules of intestacy are different for deaths for death before 1st October 2014. See here.
Information below is if general interest but mainly concerns deaths taking place after October 2014. Whilst the rules are precise, we do find that some families consider them unfair and blame the family executor for it. Having a professional firm like us to take the flak may be worthwhile.
Where there is agreement that the Rules are unfair, we can also look at the possibility of a Deed of Variation. These can change things where the right people agree – and that has to be the people who are giving up all or part of their inheritance.Probate help when there is no Will.
The Rules of Intestacy may be overruled by the Courts. If you think there might be a dispute then these pages may be helpful: disputing a Will. Or for dependants not properly provided for the Inheritance Act claims page. Normally the next of kin will apply to be appointed to administer the estate, and if professional help is needed, please contact us. As an aside, a Last Will will normally appoint Guardians for younger children. If the Last Will and testament does not exist or cannot be found, the Social Services Department will advise the Court as to whom they consider should be appointed as Guardian.
Rules of Intestacy – when a Will is not valid or no Last Will.
Even if a person has taken the sound precaution of making a Will, it could be invalid for many reasons, for example:
- Not signed at all (very common.)
- Not signed in front of two independent witnesses.
- Not found as no one has any idea where it is.
- Not found because the Will was destroyed. Either by the person who has died, or by someone who found it but didn’t like it.
- Cancelled because the person had married or civil registered after making the Will. In these circumstances a Will is cancelled if it was not obvious to the Court that the Will was intended to remain valid.
This is why we recommend the Peace of Mind Service offered by Will Custodian Ltd. Here is a short video by Ingrid McCleave, who is a solicitor and s206 Tax barrister.
But to continue with the Rules of Intestacy:
Where there is no last will, only married or civil partners and some other close relatives can inherit under the Rules of Intestacy. If someone has made a Will but it is not legally valid, the Rules of Intestacy dictate how the estate will be shared out, not the wishes expressed in the Will (as it is not valid). Married partners or civil partners inherit under the Rules of Intestacy only if they are actually legally married or in a civil partnership at the time of death. Common Law husbands or wives have no rights under the Rules of Intestacy (but can claim under the Inheritance (Provision for Family and Dependants) Act 1975. If you are divorced or if your civil partnership has been legally ended, you can’t inherit under the Rules of Intestacy. But spouses who separated informally will still inherit under the Rules of Intestacy as they are still legally married. If there are surviving children, grandchildren or great grandchildren of the person who died and the estate is valued at more than £250,000, the spouse will inherit:
- All the personal property and belongings of the person who has died. Plus
- The first £250,000 of the estate. Plus
- Half of the remaining estate.
- The balance is normally shared equally between children.
For example: Susan was married to John and they legally adopted a daughter called May. Susan died without leaving a Will. Her estate is worth £450,000. After John inherits the first £250,000, the estate that is left is worth £200,000. John can have a further £100,000.
May is entitled to the other £100,000.
If the estate is worth more than £450,000.
and there are no surviving children, grandchildren or great-grandchildren, but there are surviving parents, the spouse will inherit everything.
Rules of Intestacy: jointly owned property.
Couples may jointly own their home. There are two different ways of jointly owning a home. These are rather confusingly called beneficial joint tenancy and tenancy in common. If the partners were beneficial joint tenants at the time of the death, when the first partner dies, the surviving partner will automatically inherit the other partner’s share of the property. However, if the partners are tenants in common, the surviving partner does not automatically inherit the other person’s share.
For more information about beneficial joint tenancies and tenancies in common, see HERE. Couples may also have joint bank or building society accounts. If one dies, the other partner will automatically inherit all of the money in the account.
However, the situation is vastly more complex if one loses the ability to make decisions – and the same applies to houses. See HERE. Property and money that the surviving spouse inherits does not count as part of the estate of the person who has died when it is being valued for the intestacy rules (but it does for Inheritance Tax).
Children under the Rules of Intestacy.
Children of the intestate person will inherit if there is no surviving married or civil partner. If there is a surviving partner, they will inherit only if the estate is worth more than a certain amount.
Children – if no surviving legal spouse.
If there is no surviving partner, the children of a person who has died without leaving a will inherit the whole estate. This applies however much the estate is worth. If there are two or more children, the estate will be divided equally between them.
Children – if there is a surviving partner.
If there is a surviving partner, a child only inherits from the estate if the estate is valued at over £250,000. If there are two or more children, the children will inherit in equal shares: 1) One half of the value of the estate above £250,000 and 2) The other half of the value of the estate above £250,000 when the surviving spouse dies. All the children of the parent who has died intestate inherit equally from the estate. This also applies where a parent has children from different relationships. For example, Alan and Grace were married and have two children, Tim and Annie. Alan and Grace get divorced. Alan then has a child, Mark, with his new partner Beata. Alan and Beata do not marry. Alan dies. Grace does not inherit under the intestacy rules because she is divorced from Alan and neither does Beata because she has not married Alan. Tim, Annie, and Mark inherit all of Alan’s estate in equal shares. A child whose parents are not married or have not registered a civil partnership can inherit from the estate of a parent who dies intestate. These children can also inherit from grandparents or great-grandparents who have died intestate. Adopted children (including step-children who have been legally adopted by their step-parent) have rights to inherit under the Rules of Intestacy. But otherwise, you have to be a biological child to inherit. If a child is adopted out of a family, the child ceases to be legally entitled under the Rules of Intestacy, so if they are to benefit, a carefully drawn Will is essential. Children under 18 do not receive their inheritance immediately. The inheritance is managed by trustees on the child’s behalf until they reach the age of 18.
Grandchildren and great-grandchildren under Intestacy.
A grandchild or great-grandchild cannot inherit from the estate of an intestate person unless their parent or grandparent has died before the intestate person. The grandchildren and great-grandchildren will inherit equal shares of the share to which their parent or grandparent would have been entitled. Example: Abdul has two sons, Iqbal and Ishmael. Ishmael has one daughter, Habiba. Ishmael dies when Habiba is two years old. Abdul dies intestate when she is 20. Habiba inherits Ishmael’s share of Abdul’s estate.
Other close relatives.
Parents, brothers and sisters and nieces and nephews of the intestate person may inherit under the Rules of Intestacy. This will depend on a number of circumstances: a) Whether there is a surviving married or civil partner. b) Whether there are children, grandchildren or great-grandchildren. c) In the case of nephews and nieces, whether the parent directly related to the person who has died is also dead. d) The value of the estate. Other relatives may a right to inherit if the person who died intestate had no surviving married partner or civil partner, children, grandchildren, great-grandchildren, parents, brothers, sisters, nephews or nieces. The order of priority amongst other relatives is as follows:- 1) grandparents 2) uncles and aunts. A cousin can inherit instead if the uncle or aunt who would have inherited died before the intestate person. 3) Half-uncles and half-aunts. A half-cousin can inherit instead if the half-uncle or half-aunt who would have inherited died before the intestate person.
Who cannot inherit under the Intestacy Rules?
The following people have no right to inherit where someone dies without leaving a Will:
- unmarried partners.
- lesbian or gay partners not in a civil partnership.
- relations by marriage.
- close friends.
However, even if you can’t inherit under the Rules of Intestacy, you may be able to apply to court for financial provision from the estate under the Inheritance (Provision for Family and Dependants) Act 1975. While we don’t deal with such claims through the Courts (we refer that to other firms who specialise) we can raise the topic to see if an amicable settlement can be reached – which is much cheaper for all concerned.
Rules of Intestacy where there are NO surviving Relatives.
If there are no surviving relatives who can inherit under the Rules of Intestacy, the estate passes to the Crown. This is known as bona vacantia. The Treasury Solicitor is then responsible for dealing with the estate. The Crown can make grants from the estate but does not have to agree to them. See their site HERE. It is the Heir Hunters favourite haunt! If you are not a surviving relative, but you believe you have a good reason to apply for a grant, such as being a creditor, you will need legal advice.