If an individual dies without a valid Will in place, the rules of intestacy decide who benefits from the deceased’s estate.

What is ‘intestacy’?

‘Intestacy’ refers to the circumstances whereby a person dies without having made a valid will, or other binding declaration, to indicate how their estate should be distributed.

Intestacy may also apply where a Will or declaration has been made, but where the document only relates to a part of the estate (i.e. some assets are not distributed); the remaining estate forms the “intestate estate”.

An intestate estate must be shared out in accordance with the rules of intestacy, and despite the associated complexity it is not uncommon.

What are the rules of intestacy?

The rules of intestacy determine who should benefit from the deceased’s estate and in what order. It also decides who can act as an administrator, following an application to the Probate Registry for ‘Letters of Administration’*.

The administrator is responsible for distributing the estate properly and handling any Inheritance Tax (IHT) obligations, alongside other related issues.

Managing an intestate estate can be more time-consuming so the sooner you can apply for letters of administration, the sooner you can begin to distribute the estate to the beneficiaries.

As per the rules of intestacy, the order in which surviving relations stand to inherit runs as follows:

Married or in Civil Partnership with no children

If the deceased is married/in a civil partnership at the time of death, with no children, the surviving spouse or civil partner inherits everything. If, at the time of death, you are divorced or the civil partnership has been legally ended, you cannot inherit via intestacy. Couples who have separated informally can still inherit, whilst couples who are cohabiting without being married or in a civil partnership cannot. A couple remain married up to the Decree Absolute.

Children/grandchildren

If the deceased has no surviving spouse or civil partner, the estate will be distributed in equal shares to surviving children. If any of the children died before the decease, the estate will be distributed in equal shares to their children (i.e. the deceased’s grandchildren).

When an estate is being divided under the rules of intestacy, all your children are treated equally. Children from all relationships and legally adopted children will receive equal shares of your estate.

Stepchildren will not inherit if there is no will providing for them, regardless of your relationship or how long you cared for them, unless you have legally adopted them.

Parents

If there are no surviving children, the deceased’s parents stand to inherit the estate in equal shares (if both are alive). As with stepchildren, stepparents are not entitled to inherit under the rules of intestacy where no provision has been made for them in a valid Will.

Brothers and Sisters

If the deceased has no surviving children, grandchildren or parents, siblings will inherit the estate in equal shares. If a sibling died before the deceased, then their offspring (the deceased’s nieces and nephews) will inherit the share of the estate that their parent would have inherited.

If none of the relatives previously mentioned are surviving, half-brothers and half-sisters inherit under intestacy, with the same rules applicable for pre-deceased half-siblings.

Grandparents

If none of the relations referred to previously are surviving, the deceased’s grandparents will inherit the estate in equal shares.

Uncles and Aunts

If there are no surviving grandparents, under the rules of intestacy, the estate will be inherited by the deceased’s uncles and aunts. If uncles and aunts have already died, then their children (the deceased’s cousins) will inherit their parents share of the estate. In the absence of aunties and uncles, half-aunties and half-uncles and their children can inherit.

Bona Vacancia

If there are no surviving relatives as per the predefined list, the whole of the deceased’s estate will go to the Crown where the Treasury Solicitor will administer the estate.

*Letters of Administration are not always required; if you are unsure, we would urge you to seek professional advice.

Exclusions from the rules of intestacy

When someone dies without leaving a valid Will, the following are not entitled to inherit under intestacy:

  • Cohabitants or unmarried partners
  • Common law spouses
  • Ex-spouses or civil partners
  • Stepparents or stepchildren (or other relations by marriage) *
  • Close friends
  • Carers

*Adopted children and adoptive parents are entitled to inherit via the rules of intestacy.

In certain circumstances, though rare, it is possible for part of an intestate estate to go to a person who would not normally benefit.

For example, if you do not stand to inherit but were financially dependent on the deceased prior to their death, you may be able to make a claim for financial provision under the Inheritance (Provision for Family and Dependants) Act 1975. If and how you receive any financial provision will be decided by the courts, after taking into account your current financial status, the size of the estate and your assumed future needs.

You can use this provision if the deceased did have a Will. A claim must be made within six months of the Grant of Representation being given.

A Deed of Family Arrangement

Beneficiaries and executors can make a Deed of Family Arrangement that would allow some or all the estate to be passed onto someone who would not otherwise benefit under intestacy.

This can be useful when looking to ensure that the deceased’s estate is distributed in the most tax-efficient way, considering family circumstances.

For a Deed of Family Arrangement to be valid, several conditions must be met:

  • all affected beneficiaries and executors agree, and all beneficiaries are over 18
  • it can be made at any time after a person has died but the Deed must be executed within two years of the date of death if any tax variation is being made
  • to ensure that the deed is effective for IHT purposes the Capital Taxes Office should be informed within six months of the deed being created; and,
  • for the deed to be effective for Capital Gains Tax (CGT) purposes HM Revenue and Customs (HMRC) must be notified within six months of the deed being created.

Gifts that are made under the terms of a Deed of Family Arrangement are treated as though they were made in the Will of the deceased. This can be useful when it comes to redirecting inheritance where the original intended beneficiary is elderly or otherwise is not financially reliant on receiving the sum of money, often passing it instead to their children or grandchildren to avoid a further tax charge.

Strange as it may seem, you can ‘re-write’ a Will that is not written, i.e. if somebody dies intestate, those who will inherit under intestacy can rewrite a Will.

Planning of this nature can be a complex task and so it is always advisable to seek professional guidance at the earliest opportunity.

GH Probate: Probate services, estate administration and ongoing tax advisory

At GH Probate, we understand that dealing with a loved one’s estate can be a difficult and often confusing process and even more so where there is no Will to refer to.

GH Probate Ltd support executors, beneficiaries and families across the East of England, from offices in Huntingdon, Biggleswade and Letchworth, simplifying the probate process and ensuring that nothing is overlooked.

To find out more about our , or to have a confidential discussion with one of our probate practitioners, contact us today.

Our Probate service is provided through GH Probate Limited. For more information about our services please contact us or email us at probate@georgehay.co.uk. GH Probate is the trading style of GH Probate Limited. Registered in England and Wales number 9630102. Registered Office: St George’s House, George Street, Huntingdon, Cambridgeshire PE29 3GH. Authorised to carry out the reserved legal activity of non-contentious probate and the administration of oaths in England and Wales by the Institute of Chartered Accountants in England & Wales.

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