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The rules of intestacy and how they apply to you

The rules of intestacy are applied when someone dies without leaving a valid Will, meaning that their estate is distributed according to “the rules of intestacy.”

There are some differences between the law in England and Wales, and Scotland and Northern Ireland – in this case, we will be focussing specifically on the former.

(Scottish intestacy is dictated by the Law of Succession or Inheritance Law, while in Northern Ireland, intestacy is determined by the Administration of Estates Act (Northern Ireland) 1955).

The Administration of Estates Act 1925 primarily governs the rules of intestacy in England and Wales.

The rules outline a strict order of relatives who are entitled to inherit, starting with spouses or civil partners, and followed by children and other family members.

Spouses, civil partners, and children are the primary beneficiaries under the rules of intestacy.

However, if the deceased has no direct family, other relatives, including parents, siblings, and more distant relatives, may inherit.

The estate distribution process

The estate first undergoes valuation to determine its worth, in which debts and taxes, including Inheritance Tax, are settled before any distribution to heirs.

An administrator, appointed by the court, oversees this process in the absence of a Will.

To become an administrator of an intestate estate, you must apply for a Grant of Letters of Administration, which gives you the legal authority to manage and distribute the estate.

After settling all debts and taxes, the remaining estate should be distributed to the heirs according to the rules of intestacy.

This process involves identifying the rightful heirs based on the statutory order of priority and ensuring they receive their respective shares of the estate.

The statutory order of priority is as follows:

  • Spouse or civil partner: Receives everything if there are no children, parents, brothers, sisters, or their descendants.
  • Children: If a spouse or civil partner exists, they share the estate with them under certain conditions. If no spouse or civil partner, children inherit everything equally.
  • Grandchildren and great grandchildren: Inherit only if their parent or grandparent (the child of the intestate person) has died before the intestate person, divided equally among them.
  • Parents: Inherit if there is no spouse, civil partner, children, grandchildren, or great-grandchildren.
  • Brothers and sisters: Inherit only if there are no parents; if a brother or sister has died before the intestate person, their children (nieces and nephews of the deceased) inherit in their place.
  • Half brothers and sisters: Inherit if there are no full brothers or sisters or descendants of full siblings.
  • Grandparents: Inherit if none of the above relatives are alive.
  • Aunts and uncles: Inherit if there are no grandparents. If an aunt or uncle has died before the intestate person, their children (cousins of the deceased) inherit in their place.
  • Half aunts and half uncles: Inherit if there are no full aunts or uncles or descendants of full aunts or uncles.

Before you proceed, however, the value of the estate also has an impact on who is entitled to what.

For estates up to £322,000, the entire estate goes to the spouse or civil partner, who can then apply for probate.

If the estate exceeds £322,000, it is divided between the spouse or civil partner and the deceased’s children.

The spouse or civil partner receives £322,000, half the remaining estate, and personal possessions.

Any children then get an equal share of the rest.

If any of the children have died before the deceased, their children (the grandchildren of the intestate deceased) will inherit in their place.

Do cohabiting partners inherit under intestacy law?

Many believe cohabiting partners automatically inherit under intestacy rules, which is not the case.

Only married or civil-partnered individuals and some family members are eligible.

This misconception can lead to unexpected and often unwanted outcomes for unmarried couples which makes having a valid Will especially important under this kind of relationship arrangement.

Why intestacy is a problem for your loved ones

Intestacy can lead to disputes among family members and significant delays in distributing the estate.

It may also result in unintended beneficiaries and loved ones missing out on the assets you may have promised them in life.

Intestacy scenarios underline the importance of making a Will to ensure that your estate is distributed according to your wishes.

Intestacy might also affect the Inheritance Tax liabilities of an estate.

Without a Will to direct the distribution of assets, the estate may face a higher tax burden.

Legal advice from a qualified and experienced solicitor can help minimise these implications and ensure your wishes are fulfilled upon your death.

Solicitors also play a crucial role in navigating the intestacy process itself.

They provide essential advice on estate planning, ensuring that the distribution of the estate aligns with the deceased’s wishes as closely as possible so if you find yourself as the de facto administrator of someone’s estate you should also get legal advice as soon as possible.

Again, the importance of writing a valid Will under the guidance of a solicitor cannot be overstated.

We can ensure your Will is accurate, reflects your wishes and, most importantly, is legally binding.

Please get in touch if you’d like to speak to an experienced solicitor about estate planning.

Rachel Blackburn

Head of Wills, Probate and Older Client Services

I joined Mander Hadley’s Wills, Probate and Older Client Services Team in 2018.I specialise in the preparation of Wills, Probate and estate administration, trusts and trust administration and Lasting Powers of Attorney. I also have experience of care fee planning and appeals of Continuing Health Care decisions.