The Rules of Intestacy

A individual will die intestate if any of the following occur: –

  • They did not make a will;
  • Made an invalid will;
  • The will was destroyed with the intention of revoking it; 
  • Marriage or entering into a civil partnership after making a will. Unless a will states that the testator is making the will with the intention of marrying or entering a civil partnership, either of these will automatically revoke a will.

You cannot assume that a person has not made a will, you must thoroughly search for proof of this. You can look for a will by doing any of the following: –

  • Thoroughly searching the deceased’s house;
  • Contacting a solicitor they have instructed previously (if relevant) or any local solicitors and asking them to check their files;
  • Placing a notice in the Law Society Gazette requesting information about the deceased’s will; or
  • Making an application to search the national register of wills.

There are two different forms of intestacy which are – Total Intestacy and Partial Intestacy.

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Total Intestacy

This occurs when a person has died without leaving a valid will and the whole estate has to be dealt with.

Partial Intestacy

This occurs when the deceased has left a valid will however, it only covers some of the estate but it fails to dispose of the whole estate. The Intestacy Rules will apply to the part of the estate not contained in the will.

The executors will hold any property that has not been disposed of by the will on trust for any person who is entitled to it under the Intestacy Rules.

What do the Intestacy Rules cover?

It must be noted that the Intestacy Rules can only apply to property which the deceased could have left by a will.

Inheritance Tax on Intestacy

It is important to bear in mind once the value of the estate has been obtained after the total amount of debts have been calculated, it is imperative to calculate how much (if any) inheritance tax is due.

If the value of the estate after debts is taken is over £325,000.00, then there will be Inheritance Tax to pay. This tax is due within six months from when the person has died and if it not there will be interest charged on the amount.

Distribution on Intestacy

The order upon how an estate is split under the Intestacy Rules depends on the value of the estate and the surviving family members of the deceased.

An estate is split under the Intestacy Rules with family members who were closest toe deceased. A spouse or civil partner has priority over every other family member but they may have to share the residuary estate depending upon the specific circumstances of the deceased’s estate.

If the deceased is divorced or their civil partnership has legally ended, the ex partner will be unable to inherit under the rules of intestacy. However, partners that have informally separated may still apply.

If the deceased was cohabiting at the time of death but they were not married or in a civil partnership their partner is unable to inherit under the Intestacy Rules.

If there are children who have survived the person and if the estate is valued at more than £250,000.00 they are entitled to inherit. For the avoidance of any doubt, adopted children and step-children have the same rights to inherit under the rules of intestacy.

If a partner (through marriage or civil partnership) has survived they will inherit the following:

  1. The first £250,000.00 of the estate; and
  2. All personal possessions of the deceased (whatever their value); and
  3. Half of the remaining estate.

If there are no surviving children the partner will inherit all personal belongings and the whole estate with interest from the date of death.

In order for Grandchildren and great grandchildren of the deceased their parent or grandparent must have died and they can only inherit in equal shares the share their parent or grandparent would have inherited if they were still alive.

If there are other relatives still alive such as parents or siblings they may inherit under the Intestacy Rules but it depends on the following situation: –

  1. If there is a surviving civil or married partner;
  2. If there are surviving children; and
  3. The amount of the estate.

The order of other people who can inherit under the rules are as follows: –

  1. Grandparents;
  2. Aunts and Uncles; and
  3. Half aunts and uncles.

A cousin can inherit if the aunt or uncle would have inherited died before the intestate person.

Certain people are unable to inherit from the estate however, they are able to apply to the court for some financial provision from the estate, these include: –

  • Unmarried partners;
  • Lesbian or gay partners not in a civil partnership;
  • Relations only by marriage;
  • Carers; and
  • Friends.

Financial provision can be awarded by either maintenance as an ongoing payment or a lump sum. This is decided by the court based on the specific circumstances of the deceased’s estate.

If no relatives have survived the intestate person the estate will pass directly to the Crown.

If you have any questions in relation to the Intestacy Rules please contact our office in order to discuss your case and a member of our Probate team will advise you.

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