What happens when a loved one dies without having left a will? This happens all the time – research from 2018 shows that 60% of people do not currently have a will. Luckily, we have rules that govern this type of situation in England and Wales. When someone dies without leaving a will, it means they died ‘intestate’ (as opposed to ‘testate’ which is used to describe someone who made a will before their death).
There may also be times where a person left a will before their death but which is not valid. In such cases, the rules of intestacy still apply because the will is deemed invalid, as if it simply does not exist. The wishes expressed in the invalid will are therefore not considered.
The rules of intestacy can be quite complex; this article therefore addresses the main concerns that may arise where somebody dies intestate. This article will explore the intestacy laws, including who can and cannot inherit under these rules. The article will then touch upon how much a partner inherits as well as the relatives who may inherit if the partner does not survive. It will then go on to discuss the administration process including the duties of those responsible to deal with the estate.
What are the rules of intestacy in England and Wales?
The term ‘intestacy’ applies to situations where:
- the deceased left no will before their death; or
- the deceased left a will before their death but the will was invalid.
When someone dies intestate, their ‘estate’ must be distributed in accordance with certain rules of intestacy. The estate comprises of all property, money and any personal possessions that belonged to the deceased.
Who can inherit under the rules of intestacy?
The law classifies certain relatives who are entitled to inherit the deceased’s estate. Such relatives are those that had a relationship with the deceased which was legally recognised by the law.
Broadly speaking, the following relatives may inherit under the intestacy rules in the following order:
- Married or civil partners;
- Children (including those who were legally adopted);
- Full-blood brothers and sisters or their direct descendants;
- Half-blood brothers and sisters or their direct descendants;
- Full-blood uncles or aunts; or
- Half-blood uncles or aunts.
Note that direct descendants include children, grandchildren and great grandchildren.
Who cannot inherit under the rules of intestacy?
Certain loved ones can be excluded from inheriting the estate. Although these relationships may exist, the law does not recognise their association with the deceased, under the intestacy rules.
In general, the following relatives may not inherit under the rules:
- Unmarried partners and those not in a civil partnership with the deceased
Legislation provides for some categories of people – who may be aggrieved because they will not inherit under the rules of intestacy – to apply for a benefit from the estate. It also provides for anyone who is not satisfied with the amount of inheritance they have received under the intestacy rules to make the same application.
This application must be made within 6 months from the date that the grant of representation has been made (see below). However, in the case of deaths that happened on or after 1 October 2014, the application can be made before the grant is issued.
The applicant must prove that the distribution of the estate will not make reasonable financial provision for the applicant. Unless the applicant is a spouse or a civil partner, a person who can provide maintenance for themselves will not normally succeed in the application.
What are the rules regarding married or civil partners?
Under the intestacy rules, married or civil partners will inherit only if they were married or in a civil partnership at the time of the demise. The spouse or civil partner must also have survived for 28 days before they receive any of the deceased’s estate.
Those who were divorced from the marriage or had their civil partnership legally ended before the deceased died cannot inherit under the rules of intestacy. Those who separated informally can still inherit under the rules as they were still together in the eyes of the law.
Partners and surviving direct descendants
Where the deceased has no surviving descendants (ie children, grandchildren or great grandchildren), the partner inherits the entire estate plus all personal belongings of the deceased.
However, if there are surviving descendants of the deceased and the estate is valued at more than £270,000, the partner inherits:
- all personal belongings of the deceased;
- the first £270,000 of the estate; and
- half of the remaining estate (the other half is given to the children)
Let’s take an example:
X was married to Y. They had a son together, Z.
X died without leaving a valid will. His estate is worth £340,000.
- all personal belongings of X;
- the first £270,000 of the estate (which is worth £340,000)
- half of the remaining estate, so £35,000 (remaining estate is £70,000).
How will my estate be distributed if I have no surviving partner?
If there is no surviving spouse or civil partner (or if the spouse or civil partner dies within 28 days of the intestate), the property will be divided in the following order:
- Children and direct descendants, but if none,
- Parents (equally if both alive), but if none,
- Full-blood brothers and sisters (and descendants), but if none,
- Half-blood brothers and sisters (and descendants), but if none,
- Grandparents (equally if more than one), but if none,
- Full-blood uncles and aunts (and descendants), but if none,
- Half-blood uncles and aunts (and descendants), but if none,
- The Crown, Duchy of Lancaster or Duke of Cornwall.
What is the administration process?
The deceased’s personal representative (PR) will normally need to apply for a grant of representation in order to be authorised to deal with the estate of the deceased. Where there is no will (or where the will is invalid), the PR is called the administrator.
The grant of representation that the administrator will apply for and obtain will be the letters of administration. It should usually take three to five weeks to obtain letters of administration, but it can take longer if the case is more complicated.
Letters of administration will be applied for in the following situations:
- If there is no will;
- If there is a will but it is not valid;
- If there are no executors named in the will; or
- If executors are named in the will but they are unable to or are unwilling to act.
In some circumstances, letters of administration may not be needed. To find out more, click here.
Duties of the administrator
The administrator must:
- gather the deceased’s assets;
- pay the deceased’s funeral expenses and other liabilities;
- distribute the gifts of money;
- complete the administration and distribute the estate.
This article has provided an introduction to intestacy law – a complex area that is difficult to grasp even for the most experienced lawyers. It is for this reason that individuals are encouraged to make a will so that upon their death, their estate is distributed in accordance with their wishes.
To develop an understanding on wills, please click here to see our article, ‘Understanding Wills’.
This article is intended for guidance only and must not be relied upon for specific advice.