Dying without a will – intestacy

Intestacy means dying without having made a valid will. In England & Wales the intestacy rules set out who inherits the estate if this happens. Contrary to what many believe, in these circumstances an estate cannot just be divided how the family wishes or how the family feels the deceased would have wanted – instead the intestacy rules apply.

These rules do not include unmarried partners or step children. In fact, the intestacy provisions not only mean your assets may not pass to those you wish to receive them, they can also potentially be Inheritance Tax (IHT) inefficient.

This is one of the reasons why it is very important to make a will, which is something our Wills, Estate & Tax Planning team can help with.

How does the probate process work if there is no will?

When someone dies intestate (i.e. without a valid will), they have not appointed executors to deal with their estate. As a result, someone will need to apply for a grant (known as a grant of letters of administration as opposed to probate). This will allow them to administer the estate in line with the intestacy rules. There is a set list of people who can apply for the grant, depending on which family members are living. It starts with the spouse, and then moves down to children (if they are over 18), parents, brothers and sisters and so on. Determining who is entitled to act can be complex if the person who died did not have any close living relatives. If someone believes they are entitled to act as administrator, they should investigate the family tree thoroughly. They could employ the services of a genealogist to help with this, and the genealogist may be able to trace any relatives who may have lost touch with the deceased. It is possible that more than one family member is entitled to act as administrator. If this happens, they can either act together (up to a maximum of four people), or one may take on the role on behalf of the others. There is always the risk of disagreement between those entitled.

Who inherits under the rules of intestacy if there is no will?

It depends on the living relatives of the deceased. If there is a surviving spouse (which includes a civil partner in this note), and no children, the spouse will inherit the entire estate.

If there is a surviving spouse and children, the spouse will receive the first £322,000 together with the personal possessions. Any remaining estate is divided so that the spouse receives 50% and the children receive the remaining 50% equally between them.

If there are children but no surviving spouse, the children inherit the entire estate in equal shares. If any children have predeceased, their children (i.e. the deceased’s grandchildren) will inherit their share of the estate.

If there is no surviving spouse and no children then the estate moves along the family tree to parents, grandparents, brother and sisters, nieces and nephews, aunts, uncles and cousins.

If the entire list of family members set out by law is exhausted then the estate will pass to the Crown. This is known as bona vacantia.

Can intestacy rules be challenged?

Yes, certain categories of people can make a claim against the estate if they feel they have not been adequately provided for. This is a claim under the Inheritance (Provision for Family and Dependants) Act 1975. Those who can make a claim include a spouse or civil partner, a child, someone who was treated as a child of the deceased (e.g. step-children) and someone who immediately before death was being maintained either wholly or partly by the deceased. This could include a long term partner.

What happens if members of the family all die at the same time without leaving wills?

In this situation, the order of death has to be determined. If the order of deaths is unknown the law states that the eldest person is deemed to have died first. Each estate is then looked at separately taking into account the order of deaths to determine who will inherit under the intestacy rules.

For example, a father, mother and child all die in an accident. The father is eldest and is deemed to have died first, then the mother and finally the child. Taking the father’s estate first, he left a surviving spouse but as she failed to survive for 28 days she is deemed to have died before him. He left a child but they failed to reach 18 they don’t benefit from the estate. Therefore the wider family tree is investigated as set out above. Then the mother’s estate and finally the child’s estate would be investigated in the same way.

Let our highly experienced Probate and Will, Trust & Estate Disputes teams help minimise the stress for you at a difficult time. We offer a wide range of options, depending on how much support you need.

As one of the largest teams of probate and contentious probate lawyers in Kent and the South East, we have a vast depth and breadth of experience and combine sensitivity with a practical approach to dealing with even the most complicated of issues. Our award winning team specialises in administering complex, high and ultra-high net worth estates, as well as estates with agricultural and business assets.

If problems arise, our highly regarded Will, Trust & Estate Disputes lawyers help resolve issues as quickly and cost effectively as possible. We can also draw on expertise from our Wills, Estate & Tax Planning, Tax Management and Residential Property & Conveyancing teams as needed.

Our probate experts also have a great deal of experience in working on international estates and the complexities involved here and have a trusted network of overseas lawyers we work with regularly.

We also have specific expertise in dealing with unusual assets and holding structures. In addition, our team can assist with heritage assets and reliefs, conditional exemption and offers in lieu of tax.

We understand what it means to lose someone and that each estate is unique. This is why we offer a bespoke service, delivering support tailored to your individual needs at this difficult time.

• Full estate administration: We will deal with each aspect of the probate process, so you are not burdened with the responsibility
• Executor support service: You choose which parts of the process you want to carry out yourself and which parts you would like to hand over to our probate experts
• Grant-only service: We apply for the Grant of Representation on your behalf, enabling you to do the rest of the work yourself
• Independent Administration: A service for estates where those involved in administering an estate feel that they can go no further with the process and require an Independent Administrator to be appointed to resolve the issue.

Our probate questionnaire can help identify the type of help you may need.