Dying intestate is when an individual dies without leaving a valid will in which they are then deemed to have died ‘intestate’. Their estate is therefore distributed in accordance with the rules of intestacy.
Where the deceased has surviving family members, under the intestacy rules the process of claiming inheritance from the deceased’s estate can become lengthy and expensive.
Making a valid will is the most effective way of ensuring your assets are allocated as you wish upon death and avoiding your estate becoming deemed intestate.
But if intestacy does apply, what happens next?
Dying Intestate – Who can inherit if there is no will?
Spouses or civil partners
Married partners and civil partners can inherit provided they were still married or in a civil partnership with the deceased at the time of their death.
If your civil partnership had legally ended or you were divorced from the deceased at the time of their death, you would not be eligible to inherit under the intestacy rules. However, if you were informally separated but remained legally married or in a civil partnership, you could inherit subject to any other potential claims that may be made.
Cohabiting partners who were not married or in a civil partnership cannot inherit under the rules of intestacy.
If the deceased has surviving children, grandchildren or great-grandchildren and the estate is valued at more than £250,000, the married or civil partner will inherit all personal belongings and property of the deceased, the first £250,000 of the estate, and half of the remaining estate.
Without surviving children, grandchildren or great-grandchildren, the partner will inherit all personal property and belongings and the entire estate with interest from the date of death.
If the couple jointly owned a property, then how this is dealt with will depend on whether the property was owned under a beneficial joint tenancy or a tenancy in common at the time of death.
Under a beneficial joint tenancy, the surviving partner automatically inherits the deceased partner’s share of the property upon death.
Under a tenancy in common, the surviving partners does not inherit the deceased’s share of the property.
In the case of a joint bank or building society account, if one partner dies, the whole of the money in the account is inherited by the surviving partner.
Where the surviving partner has inherited property or money, this is not counted as part of the estate of the deceased under the intestacy rules.
Close family members
Of course, an intestate person may not only leave a partner behind but other relatives too.
If there is a surviving married or civil partner of the deceased, any children will inherit if the estate is worth more than £250,000. The partner will inherit half of the value of the estate over the £250,000 limit. The other half (of the estate over £250,000) will be inherited by the children. If there is more than one child, the inheritance will be split equally between them.
If there is no surviving married or civil partner, the children will inherit the entire estate, regardless of how much the estate is worth. If there is more than one child, the estate will be equally divided between them.
This rule applies to all children, regardless of whether they were from the current relationship or past relationships.
Where a child’s parents are not married or not in a civil partnership, the child can still inherit from their parent’s estate. Equally, they may also inherit from grandparents or great-grandparents who have died intestate.
Adopted children and step-children may also inherit under the rules of intestacy.
Children do not receive their inheritance until they reach the age of eighteen or marry or form a civil partnership under the age of eighteen. The inheritance is handled by a trustee on their behalf until they meet either of these conditions.
Grandchildren and great-grandchildren
Grandchildren and great-grandchildren can’t inherit under the intestacy rules unless their parent or grandparent died before the intestate individual, or their parent was alive at the time of the intestate individual’s death but died before the age of eighteen, unmarried and not in a civil partnership.
In this situation, grandchildren and great-grandchildren will inherit equal shares of the inheritance that their parent or grandparent would have received.
Other close family members
Parents, siblings, nephews and nieces of the intestate individual may inherit under the intestacy rules, depending on:
- whether there is a surviving partner, married or civil
- whether there are children, grandchildren or great-grandchildren
for nephews and nieces, whether the parent who is directly related to the intestate
- individual is dead
- the value of the estate
Other family members may be able to inherit if the intestate individual had no surviving married or civil partner, children, grandchildren, great-grandchildren, parents, siblings, nieces or nephews. The order of priority among other family members is:
- aunts and uncles
- cousins instead of an aunt or uncle who would have inherited but died before the intestate individual
- half-aunts and half-uncles
- half-cousins instead of a half-aunt or half-uncle who would have inherited but died before the intestate individual
Dying Intestate – Who can’t inherit?
Individuals who can’t inherit as a result of someone dying intestate are:
- unmarried partners
- lesbian or gay partners who were not in a civil partnership
- relations by marriage, a brother-in-law, for instance
- close friends
Dying Intestate – What if the deceased has no family?
If the intestate individual has no surviving family members, their estate (including property, money and personal possessions) passes to the Crown as ownerless property (or ‘bona vacantia’), and the Treasury Solicitor handles the estate.
Applying for financial help from the estate of the deceased
If you can’t inherit under the rules of intestacy, you may still be able to apply to the court for financial help from the estate, for instance, if you were the deceased’s unmarried partner.
Should the court grant your application, they may order regular payments from the estate, a lump sum or that a property be transferred to you.
Dying Intestate – What is the legal process?
When someone dies without leaving a will, dealing with their estate is left in the hands of an ‘administrator’. A married or civil partner or a child can apply to be the administrator of the intestate estate by applying for a ‘grant of letters of administration’ (sometimes referred to as grant of representation, grant of probate, or confirmation).
Once appointed, the administrator values the estate, pays any outstanding debts, and shares out the estate to all heirs under the intestacy rules.
Prepare for grant of probate
You’ll need to obtain the following documents and make at least six certified copies:
- death certificate of the intestate individual
- their birth certificate
- marriage or civil partnership certificate, if applicable
You can certify your copies by having them signed and dated by a solicitor.
These certified copies will be needed to accompany your probate forms, and to access the intestate individual’s bank accounts and life insurance.
Placing a value on the estate
Before you can apply for probate (or confirmation in Scotland), you must evaluate the worth of the estate.
- Find the value of all assets. This could include property, private pensions, jewellery and other personal belongings, shares and savings. For any item that may be worth over £500, you should involve a professional assessor.
- Did the deceased give any gifts away in the seven years leading up to their death? If so, you need to find out the value of those gifts because they may incur inheritance tax.
- Are there any jointly owned assets, such as a house? What is the deceased’s share and the related value of that share?
- Has the deceased left any debts, such as a mortgage or a credit card? Funeral costs will be counted as a debt if the estate is paying. If there is a joint debt, work out the deceased’s share.
- With all of this information, work out the total value of the estate once all debts have been paid.
Calculate any inheritance tax
Once you have the value of the estate after all debts have been paid, there will be inheritance tax to pay if the value is over £325,000 (as at April 2018).
Any tax owed should be paid within six months from the death, however, you will be required to pay some, if not all of the tax before probate is granted. Interest will be charged if the tax payment is delayed past the six months.
If you won’t be able to afford to pay any or all of the tax before probate is granted, you can ask the HMRC for a grant of credit. For more information visit https://www.gov.uk/hmrc-internal-manuals/inheritance-tax-manual/ihtm05071
For information on calculating and paying inheritance tax, visit https://www.gov.uk/guidance/work-out-what-part-of-your-estate-pays-inheritance-tax
Apply for grant of probate
Once you have valued the estate, the next stage is to fill in the correct forms and send them, with the accompanying certified copies to the nearest probate registry office with an application fee.
The forms you complete and the fee that you pay are different depending on which part of the UK you live in.
Where you live
|England and Wales||Probate application form PA1|
Inheritance tax form IHT400 if the estate is worth more than £325,000
Inheritance tax form IHT205 if the estate is worth less than £325,000
Normally £215 but there’s no fee if the estate is worth less than £5,000
|Scotland||Form C1 and C5(SE) for estates worth £36,000 or less|
Form C1 for estates worth over £36,000
The confirmation fee varies depending on the size of the estate.
|Northern Ireland||Request an appointment with your local probate office. At the appointment, the probate office will help you to complete the forms and ask for supporting documents.|
£250 for estates worth more than £10,000.
No fee for estates that are worth less than £10,000.
If the intestate individual died abroad, you can find the forms you need by visiting https://www.gov.uk/valuing-estate-of-someone-who-died
Once probate is granted
Contact the organisations that hold the deceased’s assets, such as their bank, to inform them of the grant of probate. Before they will release any assets, they will require a copy of the probate or confirmation letter which you should forward to them immediately.
Pay any outstanding debts and taxes that are due.
If the assets are property or shares, you will need to sell sufficient of them to cover any debts or taxes.
Once you have paid debts and taxes, distribute the remaining estate to all inheriting parties according to the intestacy rules.
Why seeking legal advice is important
From ensuring you have the correct documents to evaluating the deceased’s estate, specialist legal advice can guide you through the legal processes relating to dying intestate during what will no doubt be a difficult time following the death of a loved one.