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28 October, 2021 10:31:58

Explaining the Intestacy Rules


This article has been created by Jak Ward, Partner at Roythornes

If, having made preliminary enquiries with friends and family, it is advisable to undertake a reasonable search to ascertain whether a deceased individual made and left a valid Will. The National Will Register offers a range of services to help with your searches.

After performing a Will search using The National Will Register, you may receive a negative search result. This likely indicates that no valid Will has been revealed. So, what next?

When a person dies leaving no Will, they are said to have died intestate. As they have not provided directions as to how they wish their assets to be dealt with, their estate is shared out in accordance with a set of legal principles known as “the intestacy rules”. This is set out in legislation at section 46 of the Administration of Estates Act 1925 (as amended).

The intestacy rules were prescribed in 1925, and have not been comprehensively reviewed for more than 20 years. The last minor amendment was in 2020 (a slight adjustment to the spousal legacy). With more than half of the adult population not having made a Will, the intestacy rules are becoming more and more prevalent. Coupled with the ever-changing scope of modern-day families, the rules are scrutinised as not reflecting modern-day circumstances, and are not flexible so as to adapt to inter-family disputes, half-siblings, illegitimate children, cohabitant/concubine relationships and separations without divorce. That said, they are arguably the fairest resolution in a typical family scenario, and where a family is so far against the grain of a typical family, they are urged to make a Will to rectify any unwanted devolution of their wealth after death.

To further complicate matters, they are not a hard and fast set of principles for every scenario. They differ depending upon the value of the estate, and who survives them. The intestacy rules can be quite difficult to navigate, so I have tried my best to codify each scenario.

1. Where the estate is worth less than £270,000 (the current applicable spousal legacy figure), and the deceased dies leaving a surviving spouse, the surviving spouse shall take everything absolutely.

2. Where the estate is worth more than £270,000, and the deceased dies leaving a spouse and no children, the surviving spouse shall take everything absolutely.

3. Where the estate is worth more than £270,000, and the deceased dies leaving a surviving spouse and surviving children, then the surviving spouse will inherit the first £270,000 plus personal possessions. As to the residue over and above £270,000, a trust is created. The surviving spouse will get an absolute interest in half of the remainder; the other half will go to the deceased’s children immediately and in equal shares. If a child pre-deceased the deceased, then their own children (the deceased’s grandchildren) will take their parent’s share.

4. If the deceased had no spouse, but was survived by their children, then their children will inherit the entire estate absolutely and in equal shares. If a child pre-deceases the deceased, then their children (the deceased’s grandchildren) will get their parent’s share.

5. If the deceased had no spouse, and no children, then the deceased’s surviving relatives will inherit in the following order:- (i) parents, (ii) siblings (or siblings’ children), (iii) half siblings (or half siblings’ children), (iv) grandparents, (v) uncles and aunts (siblings of the deceased’s parents), or their children (the deceased’s cousins), (vi) uncles and aunts (siblings of the half blood of a parent), or their children. If you die without leaving any of the above surviving relatives then your entire estate will go to the Crown bona vacantia.

It is important to remember that the intestacy rules do not recognise unmarried “common law” partners. As stated above, the rules can be inequitable or unfair. However, surviving dependants of the deceased may be able to bring a claim against the estate under the Inheritance (Provision for Family and Dependants) Act 1975.

Should you require any further advice on the intestacy rules or your rights to pursue claims under the 1975 Act, then please do not hesitate to contact our Contentious Trusts & Probate team.




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