Rules of Intestacy
What are the Rules of Intestacy - Who can inherit in the absence of a Last Will & Testament?
In this article we will endeavour to explain as to what happens to the estate of a deceased who does not leave a valid Will.
There are certain rules that apply when a person dies without leaving a valid Will, their property or estate must be shared out according to these rules. These are called the rules of intestacy. These rules only apply if no Will was left by the deceased.
A person who dies without leaving a will is called an intestate person. These intestate rules do not apply to the valid Wills. Under the rules of intestacy only married or civil partners and some other close relatives can inherit deceased estate, but there may be some special rules that apply for the people that are not eligible under the rules of intestacy. Please see “exception to the rules of intestacy or inheritance” in the contents section for further information.
The Will needs to be a valid Will or else rules of intestacy apply, if someone makes a will but it is not legally valid, the rules of intestacy determine how the estate will be shared out, as last Will and Testament will not be considered as valid, more information about the Wills and their validity criteria, please see general rules below.
A Will is only valid if it is
- Made by a person who is minimum 18 years old.
- Made by a person who is fully aware of the nature of the document being written or signed and aware of the property and the identity of the people who may inherit. (emotionally and psychologically fit to make a Will)
- Made voluntarily and without any pressure from anyone
- in writing
- Signed by the person making the will in the presence of two witnesses
- Signed by the two witnesses, in the presence of the person making the will
- General rule for the witnesses is that a witness or the married partner of a witness cannot benefit from a will. If a witness is a beneficiary (or the married partner or civil partner of a beneficiary), the Will is still valid but the beneficiary will not be able to inherit under the Will.
- Although any Wills that are not dated are valid but it is advisable and recommended to ensure that the Will is dated when signed.
Partners married or civil inherit under the rules of intestacy only if they are actually married or in a civil partnership at the time of death. If you are divorced or legally separated or if your civil partnership has been legally ended, you may not be entitled to inherit under the rules of intestacy. However, any partners who separated informally may still be able to inherit under the rules of intestacy.
If a person with the estate valued over £250,000 dies Intestate i.e leaves no valid Will and there are surviving children, grandchildren or great grandchildren
Partner will inherit:
- All personal property and belongings of the person who died and first £250,000 of the estate and half of the remaining estate. Please see an example below
Example: Elizabeth and Adam were married and had a daughter Emily, Elizabeth died intestate (no valid Will) and left estate worth £350,000. Adam would inherit first £250,000 that would leave estate worth £100,000 Adam would also inherit £50,000 (half of the remaining estate)
Under the rules of intestacy, if there are no surviving children, grandchildren or great-grandchildren, the partner will inherit all the personal belongings and property of the person along with the interest from the date of the death.
Properties owned jointly:
Homes and properties may be owned jointly by the couples. There are two different ways of jointly owning a home.
- Beneficial joint tenancies
- Tenancies in common
In the case of beneficial joint tenancies, if the partners were beneficial joint tenants at the time of the death, the surviving partner will automatically inherit the other partner's share of the property at time of their partner’s death.
However, in the tenancies in common case, if the partners are tenants in common, the automatic inheritance rule does not apply to the surviving partner that means that surviving partner does not automatically inherit the other person's share.
In the cases of joint bank or building society accounts, the surviving partner automatically inherits the whole of the money in the joint account.
The very important rule to remember here is that the money and property that the surviving partner inherits does not count towards the estate of the person who has died when it is being valued for the intestacy rules.
If there is no surviving married or civil partner. The surviving children will inherit the whole estate, if there are two or more children then estate will be divided equally. If there is a surviving partner, children will inherit only if the estate is worth more than a certain amount which at the moment is over £250,000. First £250,000 will go to the surviving partner remaining estate will be divided into two equal parts one will go the partner and other to the children. Intestacy rules apply to all the children of the parent who has died intestate, they all inherit equally from the estate. This also applies where a parent has children from different relationships. Adopted children including step children who have been adopted by their step-parent have rights to inherit under the rules of intestacy. But otherwise you have to be a biological child to inherit.
Children will have to reach 18 to inherit but can also inherit if they get married or form a civil partnership under the age of 18. Until such time the inheritance is normally mananged by the trustees on children’s behalf.
Grandchildren and great grandchildren
A grandchild or great grandchild can only inherit the estate of an intestate person if:
- Their parent was alive when the intestate person died but parent died before reaching the age of 18 without having married or formed a civil partnership.
- Their parent or grandparent has died before the intestate person.
In these special circumstances, the grandchildren and great grandchildren will be entitled to inherit equal shares of the share to which their parent or grandparent would have been inherited.
Other close relatives
Parents, brothers, sisters, nieces and nephews of the intestate person may inherit under the rules of intestacy under certain circumstances, it depends on
- The amount of the estate.
- 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.
- Whether there is a surviving married or civil partner.
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 grand-children, parents, brothers, sisters, nephews or nieces. According to the rules of the intestacy there is an order of priority amongst other relatives which is explained below,
A cousin can inherit instead if the uncle or aunt who would have inherited but deceased before the intestate person.
A half-cousin can inherit instead if the half-uncle or half-aunt who would have inherited but deceased before the intestate person.
The following people have no right to inherit under the rules of intestacy where deceased left no valid Will.
- Lesbian or gay partners not in a civil partnership
- Close friends
- Unmarried partners
- Relations by marriage
However, even though these people cannot inherit under the rules of intestacy but they may be able to apply to the court for financial provision from the estate. Please see “Applying for financial help if you are not entitled to inherit” for further details.
If there are no surviving relatives where rules of intestacy could be applied then the estate passes to the Crown. This is known as bona vacantia. The Treasury Solicitor is then appointed and is responsible for dealing with the said estate. The Crown can make grants from the estate but does not have to agree to them.
You should seek legal advice if you feel that you are not surviving but should be applying for the grant.
For information regarding bona vacantia can be found at GOV.UK
It is possible to rearrange and re-agree the order and share of the property when someone dies without leaving a Will, that rearrangement needs to be done within two years of the death and its needs to be done by making a deed of family arrangement or variation. All the people who would inherit under the rules of intestacy must agree. If they all agree, the property can be shared out in a way other than described in the rules of intestacy. That way with the agreement of all people could change the amount of the shares as well as allow other people to inherit which are not normally allowed to inherit under the rule of intestacy.
You are strongly advised to seek legal advice if you are considering rearranging the way the estate is inherited under the rules of intestacy.
You may be entitled to apply to court for reasonable financial help from the estate of the person who died without a valid Will. For example, if you were living with the person who has died intestate but you were not married to them, which means you would not be eligible to inherit under the rules of intestacy. However, you may be able to apply to the court for financial help as long as you had lived with the person two years immediately before their death.
There is a set time limit for these applications, although in some circumstance s this time limit can be extended.
Below orders can be made by the court
- A lump sum payment from the estate
- Property to be transferred from the estate.
- Regular payments from the estate
Seek legal advice if you wish to apply for the financial support.
If you disclaim or reject your inheritance then special rules will apply which explain who should inherit if that was to happen. Seek legal advice if that is the case with you.
This article is written by Katie Gold of UK GRO Certificates Online for information purposes only. We strongly advice, that you seek legal advice before taking any actions.
UK GRO Certificates online specialise in obtaining copy of any wills that you may require for inheritance, curiosity, information, legal or for any other reason. We are the fasted service available on the internet and can dispatch your copy of a will within 24 hours.