What are the intestacy rules?

In England and Wales, the ‘Intestacy Rules’ are the laws which outline who will inherit a deceased person’s estate if they die without leaving a valid Will (this is known as dying ‘intestate’), or if they die leaving a valid Will but part of the estate is not covered by their Will (this is known as a ‘partial intestacy’).

The order of entitlement to a deceased person’s estate under the intestacy rules is set out in section 46 of the Administration of Estates Act 1925 (as amended by the Inheritance and Trustees’ Powers Act of 2014).

Order of entitlement

The question of who will inherit the deceased person’s estate will depend on which family members have survived them.

They are survived by a spouse or civil partner, but no children

The spouse or civil partner will inherit the entire estate.

They are survived by a spouse or civil partner and children

The spouse or civil partner will inherit the following:

• All of the deceased’s personal possessions; 
• Up to the value of £322,000 (this is known as the ‘statutory legacy’), plus interest thereon; and
• Half of the remainder of the estate over this value.

The children of the deceased will inherit the following:

• Half of the value of the estate over £322,000.

The deceased’s spouse or civil partner must survive them by a minimum of 28 days in order to inherit under the intestacy rules. If they do not survive at least 28 days, then the intestacy rules will be applied as if the deceased’s spouse or civil partner had died before them.

They are not survived by a spouse or civil partner

• Children (or their descendants): the children of the deceased will inherit the estate in equal shares. If any of the children died before the deceased, then their own children (the deceased’s grandchildren) will inherit their parent’s share of the estate. If the deceased’s grandchildren have also died before them leaving children of their own (the deceased’s great-grandchildren), then those great-grandchildren will inherit their parent’s share of the estate.
• Parents: if the deceased was not survived by any children or remoter descendants, but they are survived by parents, then their parents will inherit the estate in equal shares.
• Brothers and/or sisters (or their descendants): if the deceased was not survived by any children or remoter descendants, nor any parents, then the deceased’s full blood siblings will inherit the estate in equal shares. If any of the deceased’s siblings have died before them leaving children (the deceased’s nieces/nephews), then those nieces/nephews will inherit their parent’s share of the estate. If any of those nieces/nephews have also died before the deceased, their own children will inherit in their place.
• Half-brothers and/or half-sisters (or their descendants): if the deceased was not survived by any children or remoter descendants, nor any parents, nor any full blood siblings (or their descendants), then the deceased’s half-brothers and/or half-sisters will inherit the estate in equal shares. If any of the deceased’s half-brothers and/or half-sisters have died before them leaving children (the deceased’s half-nieces/half-nephews), then those half-nieces/half-nephews will inherit their parent’s share of the estate. If any of those half-nieces/half-nephews have also died before the deceased, their own children will inherit in their place.
• Grandparents: if the deceased was not survived by any children or remoter descendants, nor any parents, nor any siblings (or their descendants), nor any half-siblings (or their descendants), then their grandparents will inherit the estate in equal shares.
• Aunts and/or uncles (or their descendants): if the deceased was not survived by any children or remoter descendants, nor any parents, nor any siblings (or their descendants), nor any half-siblings (or their descendants), nor any grandparents, then their full blood aunts and/or uncles will inherit the estate in equal shares. If any of the deceased’s aunts and/or uncles have died before them leaving children (the deceased’s cousins), then those cousins will inherit their parents’ share of the estate. If any of those cousins have also died before the deceased, their own children will inherit in their place.
• Half-aunts and/or half-uncles (or their descendants): if the deceased was not survived by any children or remoter descendants, nor any parents, nor any siblings (or their descendants), nor any half-brothers/half-sisters (or their descendants), nor any grandparents, nor any aunts/uncles (or their descendants) then their half-aunts and/or half-uncles will inherit the estate in equal shares. If any of the deceased’s half-aunts and/or half-uncles have died before them leaving children (the deceased’s half-cousins), then those half-cousins will inherit their parent’s share of the estate. If any of those half-cousins have also died before the deceased, their own children will inherit in their place.
• The Crown: if the deceased is not survived by any of the family members who have previously been mentioned, then the deceased’s entire estate would pass to the Crown. This is known as ‘bona vacantia’.

Grant of Letters of Administration

When a deceased person dies intestate, their estate will be administered by an “Administrator” who is appointed under a Grant of Letters of Administration issued by the Probate Registry. There is an order of priority (set out in Rule 22(1) of the Non-Contentious Probate Rules 1987) which outlines who is entitled to apply for the Grant of Letters of Administration. The order of priority is as follows:

• Surviving spouse or civil partner;
• Children (or their descendants if any children died before the deceased); 
• Parents;
• Brothers and/or sisters (or their descendants if any of them died before the deceased);
• Half-brothers and/or half-sisters (or their descendants if any of them died before the deceased);
• Grandparents;
• Aunts and/or uncles (or their descendants if any of them died before the deceased); 
• Half-aunts and/or half-uncles (or their descendants if any of them died before the deceased); 
• The Treasury Solicitor (on behalf of the Crown).

Implications of intestacy

The intestacy rules do not account for modern family dynamics, such as unmarried partners, cohabitees and step-children. These individuals do not benefit from property owned in the sole name of the person who has died if they do not leave a valid Will. Such people may however be able to make a claim against a deceased’s estate under the Inheritance (Provisions for Family and Dependants) Act (IPFDA) 1975 if they feel that they should have been reasonably provided for under a person’s Will. A claim under this Act must be brought within 6 months of the Grant of Letters of Administration being issued.

What is a ‘partial intestacy’?

In some cases, where a will exists but it does not deal with the whole of the estate, a ‘partial intestacy’ occurs. This can happen when a Will has not been properly drafted. For example, a Will might state what should happen to some assets, however, does not specify what should happen to the rest of the estate. In addition, if all beneficiaries under a Will have died and no substitute beneficiaries have been named, the estate will have to be dealt with by way of a partial intestacy. This means that some assets are dealt with under the Will, but other assets are dealt with in accordance with the rules of intestacy.

Reasons for having a Will and how we can help

Making a Will is the best way to ensure that you have control over what happens to your estate when you die. As well as specifying who inherits your estate, through preparing a Will, you can choose who you wish to deal with your estate when you die (your Executors), appoint legal guardians to look after any children while they are under 18 and specify any funeral wishes.

Should you find yourself dealing with an Intestate estate, our specialist Private Wealth Team can provide you with advice and assistance to ensure that the estate is dealt with correctly and efficiently.