Law of Intestacy – Frequently Asked Questions
When a person dies without leaving a valid Will, their estate (assets less liabilities) must be distributed according to certain rules. These are called the rules of intestacy. A person who dies without leaving a Will is called an intestate.
Only married couples or civil partners, and some other close relatives, can inherit under the rules of intestacy.
If someone makes a Will but it is not legally valid, the rules of intestacy decide how the estate will be distributed, rather than applying the wishes expressed in the Will.
Married couples or civil partners (‘CP’) inherit under the rules of intestacy only if they are legally married or in a civil partnership at the time of death. Therefore, if you are divorced or your civil partnership has been legally ended, you cannot inherit under the rules of intestacy. However, spouses or CP who are separated informally can still inherit under the rules of intestacy.
If there are surviving children, grandchildren or great grandchildren of the person who died, and the estate is valued at more than £250,000, the spouse or CP will inherit:
- all the personal property and belongings of the person who has died;
- the first £250,000 of the estate; and
- half of the remaining estate.
Example: Sue was married to Ben, and they had a daughter called Julia. Sue died without leaving a Will. Her estate is worth £400,000. After Ben inherits his share of £250,000, the estate that is left is worth £150,000. Ben can have half of this: £75,000.
If there are no surviving children, grandchildren or great-grandchildren, the spouse will inherit:
- all the personal property and belongings of the person who has died; and
- the whole of the estate with interest from the date of death.
A Husband and wife may jointly own their home. There are two different ways of jointly owning a home. These are joint tenancy and tenancy in common.
If the couples were beneficial joint tenants at the time of the death of the first spouse, the surviving spouse will automatically inherit the other spouse's share of the property. However, if the couples are tenants in common, the surviving spouse does not automatically inherit the other person's share.
Partners may also have joint bank or building society accounts. If one dies, the other partner will automatically inherit all of the money.
Property and money that the surviving spouse inherits does not count as part of the estate of the person who has died when it is being valued for the intestacy rules.
Example: John and Angela are married and own their house jointly as beneficial joint tenants. They have a child called Emilia. John dies intestate leaving the jointly-owned flat worth £400,000, and £100,000 in shares in his own name. The flat goes automatically to Angela. This leaves an estate of £100,000 which also goes to Angela, as it is worth less than £250,000. Emilia inherits nothing.
If John had owned the house in his name alone, his estate would have been worth £500,000. It would be shared out according to the rules of intestacy, that is, Angela could get the first £250,000. This leaves an estate of £250,000. Angela would get £125,000 and Emilia would get the remaining £125,000.
Children of an intestate person will inherit if there is no surviving spouse or civil partner. If there is a surviving spouse, they will inherit only if the estate is worth more than a certain amount. All the children of the parent who has died intestate inherit equally from the estate. This also applies where a parent has children from different relationships.
Children do not receive their inheritance immediately. Trustees will manage the inheritance on their behalf until they:
- reach the age of 18, or
- marry or form a civil partnership under this age
Children - if there is no surviving spouse or civil partner
If there is no surviving spouse, the children of a person who has died without leaving a Will inherit the whole estate. This applies however much the estate is worth. If there are two or more children, the estate will be divided equally between them.
Children - if there is a surviving spouse or civil partner
If there is a surviving spouse or civil partner, a child only inherits from the estate if the estate is valued at over £250,000. If there are two or more children, the children will inherit in equal shares – a share of the value of the estate above £250,000.
Children – if there is a surviving partner to whom the deceased is not married to or has not entered a civil partnership with
A child whose parents are not married or have not registered a civil partnership can inherit from the estate of a parent who dies intestate. These children can also inherit from grandparents or great-grandparents who have died intestate.
Adopted children (including step-children who have been adopted by their step-parent) have rights to inherit under the rules of intestacy; otherwise, only a biological child can inherit.
Example: Lee and Eva were married and have two children, Tom and Sue. Lee and Eva get divorced. Lee then has a child, John, with his new partner Joe. Lee and Joe do not marry. Lee dies. Eva does not inherit under the intestacy rules because she is divorced from Lee and neither does Joe because she has not married Lee. Tom, Sue and John inherit all of Lee's estate in equal shares.
Parents, brothers and sisters, and nieces and nephews of an intestate person may inherit under the rules of intestacy. This will depend on a number of circumstances:
- whether there is a surviving spouse or civil partner;
- whether there are children, grandchildren or great grandchildren;
- in the case of nephews and nieces, whether the parent directly related to the person who has died is also dead;
- the value of the estate.
Other relatives may have a right to inherit if the person who died intestate has no surviving spouse, civil partner, children, grandchildren, great grand-children, parents, brothers, sisters, nephews or nieces. The order of priority amongst other relatives is as follows:-
- uncles and aunts. A cousin can inherit instead if the uncle or aunt who would have inherited died before the intestate person;
- half-uncles and half-aunts. A half-cousin can inherit instead if the half-uncle or half-aunt who would have inherited died before the intestate person.
The following people have no right to inherit where someone dies without leaving a will:
- unmarried partners;
- lesbian or gay partners not in a civil partnership;
- relations by marriage;
- close friends;
However, if you are unable to inherit under the rules of intestacy, you may be able to apply to the Court for financial provision from 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 is not obliged to.
If you are not a surviving relative, but you believe that you have a good reason to apply for a grant, further advice should be sought.
It is possible to rearrange the way that property is distributed when someone dies without leaving a will, provided that this is done within two years of the death. This is called making a deed of family arrangement or variation. To do this, all of the people who would inherit under the rules of intestacy must agree.
If an agreement is reached, the property can be shared out in a different way so that people who do not inherit under the intestacy rules can receive a share of the estate. Further, they could agree that the amount that people get is different to the amount they would get under the rules of intestacy.
If you think that the way a deceased’s estate is shared out should be rearranged, advice will need to be sought. You may be eligible for legal aid for this advice.
You may be able to apply to the Court for reasonable financial help from the estate of a person who has died intestate. For example, if you were living with the person who has died but you were not married to them, you would not inherit under the rules of intestacy. However, you could apply to the Court for financial help. You must have lived with them for at least two years immediately before their death. Another example is if you were always treated by the person who died as a child of the family. You would not inherit under the rules of intestacy but you could apply to the Court for financial help.
You must make the application within a certain time limit, although in some circumstances this can be extended.
The Court may order:
- regular payments from the estate;
- a lump sum payment from the estate;
- property to be transferred from the estate.
If you reject your inheritance, known as disclaiming it, there are special rules about who can inherit. It is important that you seek advice when doing this.
A grandchild or great grandchild cannot inherit from the estate of an intestate person, unless either:
- their parent or grandparent has died before the intestate person; or
- their parent is alive when the intestate person dies, but dies before reaching the age of 18 without having married or formed a civil partnership.
In these exceptional circumstances, the grandchildren and great grandchildren will inherit, in equal shares, the share to which their parent or grandparent would have been entitled.
Example: Sam has two sons, Bet and Tim. Tim has one daughter, Joe. Tim dies when Joe is two years old. Sam dies intestate when she is 20. Joe inherits Tim's share of Sam's estate.
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