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Intestacy

When do the rules of intestacy apply?

The rules apply when there is no valid will. Either a will was never made or it has been lost or is invalid. It is generally recognised that not having a will, although common, is not a good idea.

What are the rules?

If someone dies intestate then their estate has to be inherited according to clear, if somewhat complicated, rules. Even if their wishes were well known before they died, or a will exists but is invalid, their wishes cannot be taken into consideration. A spouse, civil partner or close relative must apply to the court for Letters of Administration which will allow them to deal with the estate. The rules on intestacy were changed for deaths occurring on or after 1 October 2014. This section will only deal with deaths after this date.

Who can inherit under the intestacy rules - death on or after 1 October 2014?

If the Deceased was Married or in a Civil Partnership at the Time of Death

For deaths on or after 1 October 2014 if an individual is survived by a spouse or civil partner but no children or remoter issue, the whole estate goes to the surviving spouse or civil partner. Under the old rules the surviving spouse or civil partner only received the first £450,000 and half of the excess over £450,000 with the other half going to parents or siblings.

If the deceased is survived by a spouse or civil partner and children or remoter issue (e.g. grandchildren) then the surviving spouse or civil partner will receive the first £250,000 and half of the excess over £250,000, the children receiving the other half. The surviving spouse or civil partner receives this half of the excess absolutely, whereas for deaths prior to 1 October 2014 their interest in the excess was only a life-interest whereby they received the income from the capital for their life but did not inherit the capital itself - this passed to the children on the death of the surviving spouse or civil partner. If the children are aged under 18 their share will be held on statutory trusts until they are 18.

The surviving spouse or civil partner also receives the personal chattels of the deceased in addition to the first £250,000. The definition of chattels was also changed with effect from 1 October 2014. Chattels now exclude assets held solely as an investment with no personal use at the date of death. This would be money, assets used solely or mainly for business purposes and any asset that was solely an investment.

Jointly owned assets

Assets that are jointly owned by the deceased and a surviving spouse or civil partner such as properties and bank accounts pass automatically to the surviving spouse or civil partner and do not count as part of the £250,000.

For these rules to take effect the spouse or civil partner must survive the deceased by 28 days.

If the Deceased was Not Married or in a Civil Partnership at the Time of Death

If there are children of the deceased (including adopted children) then they inherit the whole estate equally. The descendents of a child who has died will inherit that share. Any such children will only receive the capital on reaching the age of 18. If there are no surviving children (or issue) then the deceased's parents inherit equally. If there are no parents then the following relatives can inherit (in order of priority):

  1. Brothers and sisters (and if they have already died then their children inherit their share)
  2. Half brothers or sisters (and if they have already died then their children inherit their share)
  3. Grandparents
  4. Uncles and aunts (and if they have already died then their children inherit their share)
  5. Half uncles and aunts (and if they have already died then their children inherit their share)

If there are none of these then the estate is "Bona Vacantia" - without ownership - and will pass to the Crown. About 2,000 estates pass to the Crown each year because relatives cannot be found. 

The Treasury Solicitor is currently advertising over 12,000 intestate deaths in the hope of finding relatives. The Treasury Solicitor is responsible for dealing with the estate in these circumstances. Common law partners are not entitled to receive anything under the rules of intestacy.

Financial dependents

Under some circumstances it is possible to apply to the Court for financial assistance when someone dies intestate, even if they are not in one of the classes of beneficiaries. For example, someone who has lived with the deceased for at least two years or who was treated as a child of the deceased could apply to the Court. There are time limits to make a claim and you would be advised to use a solicitor to make the application. The Court could agree to make a lump sum payment, make regular payments or transfer a property from the estate of the deceased.

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