Home Personal Wills & Probate Intestacy - A Guide

Intestacy – A Guide

If a person has died without leaving a valid will, they have died intestate. Their property (the estate) will need to be shared out according to certain rules, called the intestacy rules.

The Administration of Estates Act 1925, which sets out who can administer the estate and benefit from it if there is no valid will, applies to anyone whose permanent home was in England or Wales at the time of their death.

Intestacy can also occur where there is a will but it has not been held to be legally valid, such as where you may have been pressured into making the will. Where there is a will but it doesn’t cover the whole estate, the remainder will be treated under the intestacy rules (partial intestacy).

If you want your property to be shared out a certain way after your death, you must make sure to create a legally valid will. If you do not, intestacy rules will apply and your estate may be shared out in a way you don’t want or to people you don’t want to benefit.

A joint bank account will automatically pass by survivorship to the joint account holder.

Land can also pass under the intestacy rules, but it depends on the way you hold the land. If you are the sole owner, the land will pass under the intestacy rules.

However, if you’re the co-owner of the land and own the land as a beneficial joint tenant, when you pass away, your co-owner will inherit your share. If you own the property as tenants in common, the land will be dealt with under the intestacy rules. It’s best to seek out the advice of a solicitor if you are unsure of how you hold the land.

Who can inherit under the intestacy rules?

Under the intestacy rules only married or civil partners and some other close relatives can inherit and there’s a strict order on who can benefit.

This order is:

  • Spouse or civil partner
  • Children/grandchildren
  • Parents
  • Brothers and sisters
  • Grandparents
  • Aunts and uncles

A spouse or civil partner will take priority, meaning that all of the estate will be passed on to them, unless the estate’s value exceeds £250,000 (under current rules as at March 2018). The spouse or civil partner will also receive all of the deceased’s personal possessions.

It’s important to remember that a divorced spouse is excluded and that a cohabitant has no rights under the intestacy rules. However, it doesn’t matter if the spouse or civil partner was not living with the deceased when they passed away.

If the deceased’s estate is worth more than £250,000 and the deceased had no children, the spouse or civil partner will keep all personal possessions and all of the estate.

But, if the deceased had children, the spouse or civil partner will keep all personal possessions and all of the assets up to £250,000.

The spouse will keep half of the remaining value of the estate and the rest will be split between the deceased’s children, or their grandchildren if the children have already died. Adopted children are treated as the children of their adoptive parents, not their natural parents, in this case.

If the deceased leaves no spouse/civil partner or children/grandchildren, the estate will then pass to their parents. If their parents are deceased, then the estate will pass to the deceased’s brothers and sisters, and so on.

But if there are no surviving relatives on the list, the estate will go to the Crown. This situation is known as bono vacantia.

Who can’t inherit under the intestacy rules?

As mentioned above, a number of people are not included in the rules of intestacy. These are:

  • Cohabitants or unmarried partners
  • Ex-spouses or ex-civil partners
  • Common law spouses
  • Step-parents or stepchildren
  • Friends

If you die intestate, none of these people will be able to benefit from your estate. If you do want them to benefit, you must make a will to set out who will inherit your personal possessions and property.

You may think that the way your estate is divided doesn’t matter—for example, if you’re single with no children.

But intestacy rules don’t allow for gifts to friends or charities, and you can’t leave specific items such as personal gifts for anyone.

What if I’m unhappy with the division of assets?

You may be unhappy with how the deceased’s estate may be divided under the intestacy rules.

In this case, it may be possible to make an arrangement between the beneficiaries and the executors (the people who will divide up the estate) that would allow some or all of the estate to be passed onto someone else.

Example: John has a daughter and a step-son, and he has not made a will. When he dies, only the daughter is entitled to benefit under the intestacy rules. But the daughter and step-son may set up a Deed of Family Arrangement that would allow them to share the estate.

A Deed of Family Arrangement is only valid if all of the beneficiaries and executors agree, and all beneficiaries under the intestacy rules are older than 18 years old.

However, arranging these agreements can be complex so it’s best to seek the advice of a solicitor specialising in probate law.

Are there any other options?

If you’re unhappy that you’ve not inherited under the intestacy, you may be able to apply for a benefit from the estate following intestate’s death. It is best to seek the advice of a solicitor who can discuss the likelihood of your success if you were to apply.

You may be able to make a claim for financial provision under the Inheritance (Provision for Family and Dependants) Act 1975, if you were dependant on the deceased when they passed away, but you don’t stand to inherit.

The Inheritance Act may also be used if you’ve has received some benefit under the intestacy but you are unhappy with the amount of the inheritance.

Only certain categories of people will be entitled to make a claim under the Inheritance Act.

These include:

  • The spouse or civil partner of the person who has died
  • A partner who lived with the deceased for at least two years before their death
  • A child of the deceased
  • A person who was treated by the deceased as a child of the family (such as a step-child)
  • Someone who was being maintained by the deceased at the time of death

You must bring an application under the Inheritance Act 1975 within six months of when the grant of representation of the deceased’s estate was issued. A grant of representation allows the administrators of the estate to deal with the estate and divide up the assets if necessary.

If you apply for financial provision, you must prove that “the disposition of the deceased’s estate effected by his will or the law relating to intestacy, or a combination of his will and that law, is not such as to make reasonable financial provision for the applicant”.

Your success will depend on a number of factors that the court will look into. These include your financial resources and needs and the resources and needs of other beneficiaries, the deceased’s moral obligations, the size and nature of the estate, and if you have any physical or mental disabilities.

The court can award financial provisions in a number of different ways, including periodical payments, lump sum payments or the transfer of specific property to the applicant.

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