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FAQs - the intestacy rules

What does ‘intestacy’ mean?

There is an ‘intestacy’ or a person dies ‘intestate’ if he / she died without leaving a valid will. If that is the case, then their estate will be divided in accordance with the intestacy rules. 

How does this occur?

This can occur in a number of ways, for example:

  • the deceased never made a will;
  • he / she revoked a will by destroying it and there is no previous valid will;
  • he / she made a will which has been found to be invalid and there is no previous valid will;
  • he / she married or entered into a civil partnership after making a will (unless the will was made specifically in contemplation of marriage or civil partnership).

What are the intestacy rules?

The intestacy rules set out how an estate will be divided between surviving family members if there is no valid will. The order of entitlement is set out in section 46 of the Administration of Estates Act 1925 as amended by the Inheritance and Trustees‘ Powers Act 2014. Who gets what depends on the value of the estate, when the deceased died and which family members survive the deceased. 

Do the intestacy rules cover all property owned by the deceased? 

No. They only apply to property that the deceased could have disposed of by will. So, for example, the rules do not apply to:

  • property that the deceased owned jointly with someone else where the right of survivorship applies;
  • life insurance policies taken out for the benefit of a named individual;
  • pension policies where the trustees of the pension fund have a discretion as to whom to pay out to;
  • trust assets which pass under the terms of the trust. 

Is it only family members who can inherit under the intestacy rules? 

Yes. Cohabitees, step children and relatives by marriage are not entitled to inherit under the intestacy rules, neither are friends. 

Therefore, if you want anyone in those categories of people to inherit part or all of your estate, you must make a will.

If you are a cohabitee or step child of the deceased who died intestate, you may be able to make a claim under the Inheritance (Provision for Family & Dependants) Act 1975 (read our FAQs on Inheritance Act claims for more information). 

What is a partial intestacy?

A partial intestacy arises when someone dies leaving a valid will but that will does not dispose of all of his or her assets. In that situation, the intestacy rules will be applied to those assets which are not disposed of under the will. 

So who gets what?

This depends on who the surviving relatives are, what the value of the estate is and when the deceased died. This note deals with the rules for deaths after 1 October 2014 in England and Wales. For more information on the rules for deaths occurring before 1 October 2014, please contact us. 

What happens in the following situations? 

The deceased died leaving a surviving spouse or civil partner and no children:

  • the surviving spouse or civil partner inherits everything.

The deceased died leaving a surviving spouse or civil partner and children: 

  • the surviving spouse / civil partner receives all personal chattels, a statutory legacy of £250,000 and half the residue of the estate;
  • the children receive the other half of the residue of the estate on statutory trust. 

The deceased died leaving no surviving spouse or civil partner: 

  • the children inherit the estate in equal shares (predeceased children’s shares pass to their children);
  • if the deceased did not have children, then parents inherit;
  • if there are no surviving parents, brothers and sisters inherit;
  • if none of the above, then the estate passes to more distant relatives. 

What if there are no surviving relatives? 

If there are no surviving relatives, the estate will by law pass to the Crown (known as ‘bona vacantia’). The Treasury Solicitor will then be responsible for dealing with the estate.

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