What is intestacy?
If someone dies without a valid Will then they will be known as having 'died intestate' and their estate (money, property and belongings) must be distributed according to the rules of intestacy. With around 61% of the population not having a valid Will then the chances of someone dying without a Will are high.
The rules of intestacy are very rigid and do not reflect modern family dynamics, complicated by the number of unmarried couples, divorce and stepchildren from different relationships. In this article, we explain the rules of intestacy and what to do when someone dies without a Will.
Distributing assets according to the rules of intestacy could create a headache for those dealing with the estate and cause a potential delay in finalising the deceased's affairs. It is, therefore, advisable for people to have a valid Will and to find out more read our article - "What is a will and should I get one?"
What are the rules of intestacy?
The rules of intestacy set out a rigid order for the distribution of assets of someone who dies intestate.
Married couples and civil partners
A married or civil partner will inherit all the deceased's personal possessions plus:
- the remainder of the estate if there are no children, grandchildren or great-grandchildren
- the first £270,000 of the estate if there are children, grandchildren or great-grandchildren and 50% of the remainder of the estate. The balance of the estate will go to their children
- if there is no surviving married or civil partner of the deceased then the children will inherit the whole estate.
- if there is a surviving married or civil partner then any children will inherit 50% of any amount over £270,000
- all children of the parent who has died intestate will inherit equally from the estate, this applies where a parent has children from different relationships
- if the parents of any children were not married or in a civil partnership the children can still inherit assets
- adopted children, including step-children who have been adopted by their step-parent, have rights to inherit
- step-children will receive nothing unless they have been adopted regardless of the length of time the deceased has cared for them
- trustees will manage any inherited assets until the child reaches the age of 18 or marries or forms a civil partnership before this age
Grandchildren or great-grandchildren
Cannot inherit from an estate of an intestate person unless:
- their parent or grandparent died before the intestate person
- their parent was alive when the intestate person died but dies before reaching the age of 18 without marrying or forming a civil partnership
Grandchildren or great-grandchildren will inherit equal shares of the share to which their parent or grandparent would have been entitled.
Other close relatives
Parents, brothers and sisters and nieces and nephews of the intestate person may inherit under the rules of intestacy depending on a number of circumstances:
- whether there is a surviving married 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
Other relatives may have a right to inherit if the person who died intestate had no surviving married partner or civil partner, children, grandchildren, great-grandchildren, parents, brothers, sisters, nephews or nieces.
There is an order of priority amongst other relatives which 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
No surviving relatives
If there are no surviving relatives of an individual who dies intestate then all the individual's estate will pass to the Crown.
What happens to a house when the owner dies without a Will?
If the property is owned solely by the deceased then the property will be distributed as part of the estate according to the rules of intestacy as explained above.
If the property is owned jointly with another person then it will pass to different family members depending on how the property is legally owned.
What does 'beneficial joint tenants' mean?
The property is owned jointly and each share of the property automatically passes to the other joint owner on death regardless of the familial relationship with the deceased.
What does 'tenants in common' mean?
Each person owns a separate share of the property and this share can be left to anybody in a Will. If the part-owner dies intestate then their share of the property will pass to relatives according to the rules of intestacy. Importantly, if you own property with a partner that you are not married to, your share will not pass to them if you die intestate.
What happens to any bank accounts if a person dies without a Will?
Upon death, the bank(s) of the deceased must be informed at the earliest opportunity. It is illegal to withdraw money from a deceased's account (unless you are named on the account as a joint owner) until probate has been granted. This applies even if access is needed to pay for funeral arrangements.
What happens to any debts if someone dies without a Will?
When someone dies, any outstanding debts must be repaid before the assets are distributed. This applies whether there is a valid Will or not. If a person dies without any assets then any debts will die with them; relatives are not liable to repay any debts in this instance.
What happens to any business assets if someone dies without a Will?
All assets in the business will be treated the same as personal assets and distributed according to the rules of intestacy.
A partnership is a separate legal entity and on the death of one partner, the partnership will cease to exist unless there is a partnership agreement outlining what is to happen on death. Unless otherwise stated in a partnership agreement, the deceased's relatives will inherit their share according to the rules of intestacy.
A limited company is a separate legal entity and will continue after the death of a shareholder. The deceased's shares in the business will pass to the estate of the deceased and will be distributed under the rules of intestacy.
Who deals with the distribution of assets if a person dies intestate?
If someone dies having left a Will then usually they’ll have appointed an Executor to deal with their estate. When someone dies without a Will, an application must be made to the Probate Registry for a Grant of Letters of Administration. This document gives authority (to the person named) to administer the deceased person’s estate. This person is known as an Administrator.
Who Can Apply to be an Administrator?
The Intestacy Rules set out an order of priority of those relatives who are entitled to benefit from the estate. Essentially these relatives are entitled to apply to be an Administrator and obtain a Grant of Letters of Administration, which would then enable them to deal with the administration. The order of priority is:
- Surviving spouse or civil partner
- Sons or daughters
- Brothers and sisters
- More distant relatives
If the deceased is not survived by a spouse or civil partner then any surviving children can apply to be an Administrator. If no children survive then others on the priority list can apply in priority order.
Once the Grant of Letters of Administration has been issued, the Administrator must follow the same procedure as if there had been a Will. This includes collecting in assets, paying tax or other liabilities and distributing the estate in accordance with the rules of intestacy.
Can I challenge the rules of intestacy?
It may be possible to challenge the rules of intestacy if a person can show that they were financially dependent on the deceased at the time of death and do not stand to inherit under the rules of intestacy. The chances of success will depend on a number of factors including the size of the estate, the financial position and likely future needs of the claimant.
Should I have a Will?
We have explained the rules of intestacy in this article and as has been demonstrated, things can get complicated. You can avoid the need for your family to go through this complex process by ensuring you don't die intestate and by sorting out a will. It is especially important if you are married or in a civil partnership, if you have children or if you are single and have assets. Our article "What is a Will and should I get one?" goes into more detail.
How do I write a Will ?
Writing a Will is a very simple process and a basic Will can be completed online for very little cost. In our article - "The best will writing services in the UK" we review the online will writing services and which one may be best for your circumstances.