What are the rules of intestacy

When a person dies without leaving a valid will, their property (the estate) must be shared out according to certain rules. These are called the rules of intestacy. A person who dies without leaving a will is called an intestate person. Only married or civil partners and some other close relatives can inherit under the rules of intestacy.

If someone makes a will but it is not legally valid, the rules of intestacy decide how the estate will be shared out, not the wishes expressed in the will.

Married partners and civil partners

Married partners or civil partners inherit under the rules of intestacy only if they are actually married or in a civil partnership at the time of death. So if you are divorced or if your civil partnership has been legally ended, you can’t inherit under the rules of intestacy. But partners who are separated informally can still inherit under the rules of intestacy.  

If there are surviving children, grandchildren or great grandchildren of the person who died and the estate is valued at more than £250,000, the partner will inherit:

  • All the personal property and belongings of the person who has died, and
  • The first £250,000 of the estate, and
  • A life interest in half of the remaining estate. 

If the estate is worth more than £450,000, there are no surviving children, grandchildren or great-grandchildren, but there are surviving parents, the partner will inherit:

  • All the personal property and belongings of the person who has died and
  • The first £450,000 of the estate with interest from the date of death and
  • One-half of the remaining estate.

If the estate is worth more than £450,000, there are no surviving children, grandchildren, great-grandchildren or parents, but there are surviving brothers, sisters, nephews or nieces, the partner will inherit:

  • All the personal property and belongings of the person who died and
  • The first £450,000 of the estate with interest from the date of death and
  • One-half of the remaining estate.

Jointly-owned property

Couples may jointly own their home or other assets. There are two different ways of jointly owning an asset. These are beneficial joint tenancies and tenancies in common.  If the partners were beneficial joint tenants at the time of the death, when the first partner dies, the surviving partner will automatically inherit the other partner's share of the asset. However, if the partners are tenants in common, the surviving partner does not automatically inherit the other person's share.

Couples may also have joint bank or building society accounts. If one dies, the other partner will automatically inherit the whole of the money.

Property and money that the surviving partner inherits does not count as part of the estate of the person who has died when it is being valued for the intestacy rules.

Close relatives

Children

Children of the intestate person will inherit if there is no surviving married or civil partner. If there is a surviving partner, they will inherit only if the estate is worth more than a certain amount.

Children - if there is no surviving married or civil partner

If there is no surviving partner, the children of a person who has died without leaving a will inherit the whole estate. This applies however much the estate is worth. If there are two or more children, the estate will be divided equally between them.

Children - if there is a surviving partner

If there is a surviving partner, a child only inherits from the estate if the estate is valued at over £250,000. If there are two or more children, the children will inherit in equal shares:

  • One half of the value of the estate above £250,000 and
  • The other half of the value of the estate above £250,000 when the surviving partner dies.

All the children of the parent who has died intestate inherit equally from the estate. This also applies where a parent has children from different relationships.

A child whose parents are not married or have not registered a civil partnership can inherit from the estate of a parent who dies intestate. These children can also inherit from grandparents or great-grandparents that have died intestate.

Grandchildren and great grandchildren

A grandchild or great grandchild cannot inherit from the estate of an intestate person unless either:

  • Their parent or grandparent has died before the intestate person, or
  • Their parent is alive when the intestate person dies but dies before reaching the age of 18 without having married or formed a civil partnership

In these circumstances, the grandchildren and 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. This will depend on a number of circumstances.

If there are no surviving relatives

If there are no surviving relatives who can inherit under the rules of intestacy, the estate passes to the Crown. This is known as bona vacantia. The Treasury Solicitor is then responsible for dealing with the estate. The Crown can make grants from the estate but does not have to agree to them.

Rearranging the way the estate is shared out

It is possible to rearrange the way property is shared out when someone dies without leaving a will, provided this is done within two years of the death. This is called making a deed of family arrangement or variation. All the people who would inherit under the rules of intestacy must agree.  If they agree, the property can be shared out in a different way so that people who do not inherit under the intestacy rules can still get some of the estate. Or they could agree that the amount that people get is different to the amount they would get under the rules of intestacy.

This article is a brief summary of a complex area.  Specific professional advice should be sought before taking any action in regard to any transaction related to this article.

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