The Laws Of Intestacy

The Laws Of Intestacy

When a person dies without leaving a will, or if they leave a will which is later found to be invalid, they are said to have died intestate. This means that their estate (property and other assets) must be shared out according to the rules of intestacy.

Only married or civil partners and some other close relatives can inherit under the rules of intestacy. Unmarried partners cannot inherit under the rules of intestacy nor can anyone else who is not in the specified class of relatives.

This is why it is critical to make a will to protect your partner if you are cohabiting but not married. Click here for a list of people who cannot inherit under the intestacy rules.

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Who inherits under the rules of intestacy?

Married partners and civil partners

Married partners or civil partners inherit under the rules of intestacy only if they are married or in a civil partnership at the time of death. If you are divorced or if your civil partnership has been legally ended, you cannot inherit under the rules of intestacy. Partners who 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
• half of the remaining estate with the other half of the remaining estate passing to any surviving children

If there are no surviving children, grandchildren or great-grandchildren, the partner will inherit the entire estate of the deceased.

Jointly-owned property and intestacy

Couples may jointly own their home. There are two different ways of jointly owning a home. These are beneficial joint tenancies and tenancies in common.

Beneficial joint tenants

If you hold property as beneficial joint tenants, it will pass to the survivor automatically on the first death. Neither joint owner can leave his/her share of the property to anyone else by Will or otherwise. This is the most common way in which a couple will own a property unless they have taken action to sever the joint tenancy.

Tenants in common

If you hold property as tenants in common this means that you hold the property in declared shares or proportions. In the absence of any evidence to the contrary it will be assumed that tenants in common own the property in equal shares.

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 property. However, if the partners are tenants in common, the surviving partner does not automatically inherit the other person's share.

Other assets

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 in this way 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 who can inherit under the laws of intestacy

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 spouse or civil 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 married or civil partner

If there is a surviving spouse or civil 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 who have died intestate.

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 do not receive their inheritance immediately. They receive it when they:

• reach the age of 18, or
• marry or form a civil partnership under this age.

Until then, trustees manage the inheritance on their behalf.

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:

• 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
• the amount of the estate.

Other relatives may 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. The order of priority amongst other relatives is as follows:-

• grandparents
• 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.

Who cannot inherit under the laws of intestacy

The following people have no right to inherit where someone dies without leaving a will:

• unmarried partners
• lesbian or gay partners not in a civil partnership
• relations by marriage
• close friends
• carers

What happens to a deceased estate 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. The Treasury Solicitor is then responsible for dealing with the estate.

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