What Are the Rules of Intestacy?

Squiggle Support Team

Last Update 2 months ago

INTRODUCTION


In England and Wales, 'intestacy' occurs when a person dies without leaving a valid Will. That person is said to die 'intestate' as opposed to 'testate'.


When a person dies intestate, their estate (property, possessions, money) must be distributed according to a number of specific rules. These are known as the "rules of intestacy".

Under the rules of intestacy, only married or civil partners and certain close relatives can inherit the deceased person's estate. 

See the next section below for a more detailed explanation of these strict inheritance laws.


Also, remember that if a Will is considered not legally valid, the rules of intestacy will override the wishes expressed in the Will and ultimately decide how the estate is distributed. You can also read more on this below.




WHAT POTENTIAL PROBLEMS ARISE WHEN DYING INTESTATE?


If your estate passes by intestacy, this may present significant problems. You may end up in a situation where the people who end up inheriting your estate may not actually be the people you originally intended to inherit your estate.


Modern family structures today aren't what they used to be, so current rules are murky when it comes to certain "family" members. For example:


  • Cohabiting partners who are unmarried or in a civil partnership aren't included.
  • Stepchildren are not provided for.


In addition, it may sometimes be necessary to call in a genealogist to lay out a family tree to reach a conclusion on who actually gets to benefit from the estate.


In some cases, there may be costly delays. For example, a genealogist may need to be called in to prepare a family tree to work out who is entitled to benefit from the estate.


Also, bear in mind that intestacy means you'll not have a say over who should administer your estate since you will not have chosen any executors. Under these circumstances, specific rules apply regarding the nomination of an administrator to administer your estate. This could end up being a distant family member.

To avoid these potential problems, it would be better to prepare a Will tailor-made to your needs.




WHO CAN OR CAN'T INHERIT UNDER THE RULES OF INTESTACY?


Who can inherit under the rules of intestacy?

  • If a couple is married or in a civil partnership at the time of death, the rule of intestacy applies.
  • Partners who are INFORMALLY separated can still inherit.


Who can't inherit under the rules of intestacy?

  • Conversely, if you're divorced or the civil partnership has been formally terminated, you won't be able to inherit.
  • Cohabiting partners who were neither married nor in a civil partnership cannot inherit.




THE HIERARCHY OF BENEFICIARIES


When somebody dies without making a Will, then the rules of

intestacy provide for the following hierarchy of beneficiaries*:


  1. Surviving spouse or civil partner
  2. Children (blood or adopted) of the deceased (if there is no spouse or civil partner)
  3. The parents of the deceased
  4. Any siblings of the deceased (full siblings prioritised over half-siblings)
  5. Grandparents of the deceased
  6. Aunts and uncles
  7. Cousins of the deceased
  8. The Crown (if there are no living relatives)


*NB: No provisions are made for the stepchildren of the deceased. Please refer to the section below on special provisions for stepchildren.




PARTNERSHIPS


What happens if you are in an unregistered partnership or are not married?

Although family relationships have evolved substantially over the years, the rules of intestacy unfortunately still don't allow for this evolution.


For example, if you are in an unregistered partnership or are unmarried, don't expect to see any special provisions if your partner passes away. As the surviving partner under these circumstances, you will not automatically inherit any of the property and assets in the sole name of your deceased partner.


When this happens, you can either:


  • make a valid inheritance claim; or
  • your surviving partner's family can make provisions to legally alter the distribution of assets on intestacy so that you are provided for.



CHILDREN


I was in a married/civil partnership, and my partner had children.

  • I inherit the first £270,000 of my partner's estate, along with my partner's possessions.
  • Any assets over £270,000 are divided. As the spouse/civil partner, I receive a further 50% of what is left over, and the remaining 50% is divided between the children.


Example illustration:

Rebecca and Patrick were in a civil partnership, and they have two daughters, Stephanie and Elizabeth. Patrick passed away without leaving a Will, and his estate is worth £500,000.


  • Rebecca inherits £270,000.
  • The remaining estate is worth £230,000. Rebecca keeps half of this, so an additional £130,000.
  • Stephanie and Elizabeth each inherit £65,000.


I was in a married/civil partnership, and my partner had no children.

  • I inherit all of my partner's estate.


I was neither married to my partner nor in a civil partnership, but my partner HAD children.

  • My partner's whole estate goes to the children.


I was neither married to my partner nor in a civil relationship, and my partner DID NOT HAVE children.

  • In this case, my partner's estate could go to my partner's siblings, parents or even other relatives.



GRANDCHILDREN AND GREAT-GRANDCHILDREN

A grandchild or great-grandchild can ONLY inherit from the estate of an intestate person if either of the following two conditions are met:


  • Their parent or grandparent has died before the intestate person; or
  • Their parent is alive when the intestate person dies but dies before age 18 without marrying or entering into a civil partnership.


When the above happens, the grandchildren and great-grandchildren inherit equal shares of that particular share to which their parent or grandparent would have been entitled.




STEP FAMILY - THE GAP BETWEEN TRADITIONAL RULES AND MODERN FAMILY RELATIONSHIPS


These days, the law has not kept up with today's "modern family" structure, even though it's increasingly common to see blended family structures. Only natural and adopted children are recognised under the laws of intestacy, and it's not so clear with stepchildren.


If you have stepchildren or step-siblings, you might be tempted to refer to them as "my children" or "my brothers and sisters", but the law does not automatically recognise them in the same way. Even when there is a Will in place, you must name your stepchildren or siblings as named beneficiaries in your Will.

If stepchildren have been left out of a Will or their stepparent died intestate, the only option is to make a claim under the Inheritance Act 1975 (Provision for Family and Dependents). For the claim under the act to be successful, there are two eligibility criteria:


  • The stepchild must have been treated as a child of the family by a married stepparent or was financially dependent upon the stepparent.
  • Either no or inadequate provision has been made in the deceased's Will (in cases where a Will is already in place).
You should also bear in mind that, under such circumstances, time is critical. Any claim under the act must be made within six months of the date when the probate was granted. So you must treat this with a degree of urgency.



PARTIAL TESTACY


To recap, if somebody dies without leaving a Will, they are said to die intestate. But the rules of intestacy also apply to cases of 'partial intestacy' where a person has left a Will, but that Will has not dealt with the whole of their estate, or the estate has not been distributed (e.g. the named beneficiaries may have passed away).


For further information on partial intestacy, please refer to the question "What is partial intestacy?"




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