When someone dies without leaving a Will it is known as dying intestate. It means that the distribution of what they leave – their estate – must be decided by law because they have left no legal instructions as in a Will.
The process follows the intestacy rules which determine who is entitled to a share of the estate and who may be appointed to administer its distribution.
The intestacy rules also come into play if a Will has been written but is deemed to be invalid.
Similarly, if there is a partial intestacy (e.g. where there is a Will but a beneficiary has died and the Will does not clearly state who is to receive this part of the estate).
Intestacy Rules - The Order of Inheritance
Married Partners and Civil Partners
Married partners and civil partners (who were so at the time of death) are the first set of people who can inherit an estate. Please note that this does not include 'common law' husbands or wives. Divorce will forfeit the right to inherit but those who are separated informally would still be able to inherit.
If the deceased does not have any surviving children, grandchildren or great grandchildren then the surviving spouse or civil partner receives everything.
If there are surviving children, grandchildren or great-grandchildren, and the estate is worth over £270,000, it will be shared between the surviving partner and children (or grandchildren and great grandchildren if a child has predeceased). The partner receives:
- All the personal property and belongings.
- the first £270,000 of the estate.
- half of the remaining estate, with the other half passing to the deceased's children.
When it comes to jointly owned property or bank accounts, they do not count in the estate and automatically become the property of the surviving owner. The only exception to this if a property is jointly owned as a 'tenants in common' agreement. In this case the property does not automatically pass to the surviving owner and instead falls into the division mentioned above.
Please note that the deceased share of jointly owned assets are included in the Inheritance Tax calculation.
Children, Grandchildren and Great Grandchildren
If a person dies intestate, and there is no surviving married partner or civil partner, their estate will pass to their children. All children will inherit an equal share. As mentioned above, if there is a surviving partner and the estate is worth over £270,000, children will share of the half estate above the £270,000. In cases of multiple children, this half will be shared equally among them.
If there are children from other relationships (who have not been adopted into another family), they will also be included in the division of the estate if it is their biological parent who has died.
Children do not receive their inheritance until they are 18 (or enter into marriage/civil partnership). Until then, their share of inheritance is managed by the administrators on their behalf, as trustees.
Grandchildren (and great grandchildren) will only be able to inherit under intestacy rules if their parent has predeceased. If this is the case, they will inherit the share which their parent would otherwise have received.
If the intestate person was not married, and had no children, grandchildren or great grandchildren then the following relatives will become the beneficiaries in this order of priority:
- Half Siblings
- Uncles/Aunts or their children
- Half Uncles/Aunts and their children
If there are no living relatives, the entire estate will go to the crown. This is known as bona vacantia. A Treasury Solicitor will then be responsible for administering the estate.
Intestacy Rules in Scotland
In Scotland, the intestacy rules are slightly different. A surviving partner (through marriage or civil partnership) is entitled to ‘prior rights‘. This includes a share of a family home (provided it is in Scotland and the intestate person resided in it when they died) up to the value of £473,000 and furniture and other moveable assets.
Once these have been divided, anything remaining is shared by ‘legal rights‘ amongst children and other living relatives. Beyond them, the Succession Act determines how the estate is shared.
Who administers an estate if there is no Will?
If there is no Will that means there is no executor (the person delegated to administer a Will). In this case and ‘administrator’ is appointed to follow the intestacy rules and administer an estate. This will be decided by strict reference to the list of eligible people in order of priority, first being a surviving husband, wife or civil partner, if none then children, parents, siblings etc. The administer will have to submit an application to the Probate Registry for a ‘grant of representation’.
Changing the way an estate is administered
If you wish to rearrange the order in which an estate is shared (if there is no Will) then you will need to make a deed of family arrangement or variation. This is a legal agreement that everyone who would otherwise inherit under the intestacy rules must unanimously agree to and signs. You have to do this within two years of the death and you must report it to HMRC if it changes the Inheritance Tax Calculation.
You will certainly need to seek legal advice when making such an agreement.
Who is not able to inherit under intestacy rules?
Making a Will is essential if you do not want your estate to be dealt with by the rules of intestacy. If your parent dies without a Will, there are a number of people who won’t automatically be able to inherit any of their estate:
- Unmarried partners
- Step or foster children
- Unrelated people who are important to the deceased and financially dependent on them.
If a person does not inherit under intestacy rules, but feels like they should and need to, they can apply to court under the Inheritance (Provision for Family and Dependents) Act 1985 for financial provision from the estate. Applications under this legislation must be done relatively soon after death and will require legal assistance and advice.