IntestacyFrequently Asked Questions
Intestacy is where someone dies without leaving a Will or the Will is not valid. Occasionally, a partial intestacy may arise, where there is a Will but it fails to dispose of all the assets or property of an estate or the Will fails to appoint Executors. The intestacy rules are there to fill in the gaps.
An Intestacy can arise for a number of reasons and the result is the deceased’s assets are undisposed of, so the intestacy rules kick in to dictate who inherits the assets of the deceased. Common reasons for intestacy are as follows:
- The obvious reason is that there was no Will but please note that Wills do not go out of date
- The Will is invalid perhaps it has not been signed and witnessed correctly, there are very strict rules to abide by when signing and witnessing a Will
- The Will has been revoked by a marriage that occurred after the Will was made unless the Will was made in contemplation of marriage or civil partnership. A marriage will automatically revoke an existing Will.
- The Will has been destroyed by the testator (the person who is writing the Will)
- Making a Will in a foreign country which unintentionally revokes the UK Will
- The beneficiaries of the Will have died before the testator and therefore the Will cannot deal with the disposition of the deceased’s estate
The intestacy rules determine who will inherit the estate of the deceased and who is entitled to take out Grant of Letters of Administration (the legal document issued by the Probate Court to the Administrators that authorises them to deal with the assets in the deceased’s name).
The rules only apply to the assets the deceased could have disposed of under a Will, so do not apply to jointly owned assets which pass automatically to the surviving joint holder outside the terms of the Will.
Where there is a foreign element to the estate it would be wise to seek legal advice.
The rules will enforce the division of your estate in a fixed order as below set out below:
your spouse or civil partner will not automatically receive all of your estate, what they will receive will depend on the size of the estate and whether there are children, grandchildren or great grandchildren.
If there are children your spouse or civil partner will receive your personal possessions, along with the first £250,000 of your estate, plus half of the remaining estate. The other half of the estate will go to your children and possibly held in Trust if they are under 18. If your estate is worth less than £250,000 your spouse or civil partner will inherit the whole of your estate and your children will receive nothing.
If there are no children, grandchildren or great grandchildren your spouse or civil partner will inherit the whole of your estate.
Do note that if you are separated but are still married or in a civil partnership, your spouse or civil partner may inherit, even though you no longer live together. This means that your children may not inherit any of your estate if you die intestate.
If you have no surviving spouse or civil partner your child or children will receive the whole of your estate and it will be shared equally amongst them.
Your children are treated equally under the rules of intestacy. Children from any previous relationship and legally adopted children will receive equal shares of your estate.
Step-children will receive nothing if there is no will providing for them, regardless of your relationship or how long you cared for them, unless you have legally adopted them.
Under the rules of intestacy your children will only receive their inheritance when they reach the age of 18 or marry or enter into a civil partnership before they become 18.
Your grandchildren and great grandchildren will not inherit any of your estate unless the child’s parent or grandparent died before you or the child’s parent is alive when you die, but dies before reaching the age of 18 and is not married or in a civil partnership. If grandchildren and great grandchildren inherit they will take the amount their parent/grandparent would have received in equal shares.
If you die intestate leaving no surviving spouse or civil partner and no children or surviving children, grandchildren or great grandchildren your parents will inherit your estate in equal shares.
If there are no surviving parent(s), your brothers and sisters will inherit in equal shares. If a brother or sister has already died, their children (your nieces and nephews) will inherit their parent’s share of the estate.
If there are no brothers or sister, nieces and nephews, your estate will pass to any half-brothers and half-sisters you have. If a half-brother or half-sister has died, their children will inherit their parent’s share of the estate.
If there are none of the above, your grandparents will inherit your estate in equal shares.
If there are no surviving grandparents, your aunties and uncles will inherit your estate. If an auntie or uncle has already died, their children (your cousins) will receive their parent’s share of the estate.
If there are none of the above, your half-aunties and half-uncles will inherit your estate. If a half-auntie or half-uncle has already died, their children will inherit their share of the estate.
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.
If you are not a surviving relative, but you believe you have a good reason to apply for a Grant, we recommend you seek legal advice.
The following people have no right to inherit where someone dies without leaving a will:
- unmarried partners (sometimes wrongly called 'common-law' 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 the court for financial provision from the estate. See Dispute Resolution
Miss B had lived with her partner for 10 years and they had never married. They had an 8-year-old daughter together. Mr D owned the house in his sole name, held bank accounts in his sole name and the mortgage on the property was also in his sole name. Mr D became ill and was diagnosed with terminal cancer. Mr D had intended to make a Will and sort out his finances but unfortunately died before he had a chance to do so.
Miss B was left in a very difficult situation as not only had she lost her partner, she had her daughter to think about and they had to deal with their loss but she also had to deal with sorting out Mr D’s financial affairs. The mortgage company would put a hold on the mortgage payments for a period of time but not for long. The household bills still needed to be paid and there were other expenses that all still had to be dealt with.
Under the intestacy rules it was the daughter who inherited the whole of the estate. The daughter being only 8 years old meant the estate would be held in Trust until she was 18. There was no provision for Miss B under the intestacy rules. The only course of action open to Miss B was to make a claim on her partner’s estate as she was dependant on him at the time of his death.
Miss B had to instruct a solicitor to take out a Grant of Letter of Administration, she had to instruct a further solicitor to act on her behalf in making the claim on the estate and a further solicitor to act on behalf of her 8-year-old daughter who had inherited the estate and against whom the claim was being made.
What made matters even worse for Miss B was that her partner had not updated his nomination of wishes form for his pension and death in service benefits which were still nominated to his ex-wife. Although the ex-wife would not inherit the money nor would Miss B and the payments would form part of the 8-year-old daughter’s inheritance and be held in Trust. This was money Miss B had hoped to use to pay off most of the mortgage and then allow her to take a small mortgage which she could afford to pay from her own wages.
Mr D without knowing it had left Miss B and their daughter in a very difficult and complicated financial mess, if he had just made a Will all of this could have been avoided.