What are the UK intestacy rules?

UK intestacy rules are the laws that apply when someone dies without leaving a will. In the absence of a valid will, it is these rules that decide how a person’s estate (an estate is another word for everything they owned including money, property, possessions and debt) is distributed after they die. In other words, an individual who dies without having a will in place is described as having died intestate, which means that the estate will be distributed according to the rules of intestacy.

In England and Wales, the rules of intestacy state the deceased’s estate must pass to their closest relative or relatives. It is possible the intestate estate will pass to a spouse or civil partner or, if there is no spouse or civil partner it will pass to the next ‘blood” relative in accordance with the intestacy rules. It should be noted that blood relatives includes legally adopted children.

Who is eligible to inherit?

Married couples or civil partners are the first in line. They inherit from an intestate estate if they are married or in a civil partnership at the time of the death – they won’t inherit if they are divorced, or their civil partnership has been legally ended. It is really important to note that unmarried partners, however long-term the relationship and even if they have children together, will not inherit under the laws of intestacy in the UK.

The official order of distribution

When a person dies without leaving a valid will, their property (the estate) must be shared out according to the strict UK Intestacy Rules.

The deceased had a spouse or civil partner but no children

If the deceased was married or in a civil partnership without children, the surviving spouse or civil partner inherits the entire estate.

The deceased had a spouse or civil partner and the deceased had children

If the deceased was married or in a civil partnership and had children, and the estate is worth more than £270,000, then the surviving spouse or civil partner will inherit all personal possessions, the first £270,000 of the estate, and half of the remaining estate. Any blood related or legally adopted children will inherit half of the remaining estate and the amount will be divided equally between any all the children. Step-children will not inherit.

The deceased was unmarried with children

If the deceased is unmarried the estate will be shared equally between any blood related or legally adopted children.

The deceased was unmarried with no children

Parents

If the deceased had no children but their parents are still living, the estate will be shared equally between any surviving parents.

Siblings (Brothers and Sisters)

If there are no living parents but the deceased leaves surviving siblings, then the estate is distributed equally among full siblings.

In the absence of full siblings, half siblings are next in line.

Grandparents

If there are no siblings, then the estate passes to living grandparents who will share the inheritance equally between them.

Aunts and Uncles

If you have no living grandparents then your estate passes to your aunts and uncles, who will share your estate equally between them. If you have no aunts or uncles, then your estate passes to the Crown.

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What if there are no eligible heirs?

If there are no eligible heirs for an intestate estate, then the estate passes to the Crown – when this happens, it is known as Bona Vacantia.

Today’s family structures are diverse and varied so it’s not always an easy task to identify potential heirs even with the help of a family tracing service or genealogist. Before the estate is taken by The Crown, the Government Legal Department (GLD) places deceased estates notices in The Gazette to offer some protection to executors and administrators of unclaimed estates. The unclaimed estate list is also available on the government website and is publicly accessible and searchable. It lists all current unclaimed estates which potential beneficiaries can view and if they believe they are entitled, there is a process to identify themselves.

What happens to jointly owned property?

We have already mentioned that unmarried couples and those in a relationship outside of a civil partnership won’t inherit under the rules of intestacy. This strict rule applies even if you lived together before your partner died, so what happens where property is jointly owned if the surviving joint owner is not entitled to inherit?

How the property is jointly owned determines who inherits, when it comes to probate law for an intestate estate. For property that is owned as joint tenants, the surviving owner automatically inherits the deceased owner’s share. However, for property owned as tenants in common, the surviving owner won’t automatically inherit the deceased owner’s share.

To demonstrate how property ownership impacts on beneficiary rights, take as an example Tom and Heather who own a flat worth £600,000.

Married, one child, property owned as Joint Tenants

In scenario one, Tom and Heather are married with one child and own their flat as joint tenants. Tom dies intestate and, in addition to owning the house as joint tenants he has £50,000 in savings. As Joint Tenants the rights of survivorship mean that the flat automatically goes to Heather. This leaves Tom’s estate with a value of £50,000 which also goes to Heather because the value is below £270,000.

Married, one child, property owned as Tenants in Common

If Tom and Heather owned the flat as Tenants in Common with each owning 50% of the property upon his death his estate would have been worth £350,000. According to the rules of intestacy Heather would get the first £270,000. The remaining £80,000 would be shared evenly between Heather and their child.

Unmarried, one child, property owned as Joint Tenants

In this scenario Tom and Heather are not married and they own the property as joint tenants. The rights of survivorship apply to the property and the house will be passed to Heather leaving Tom’s estate with a value of £50,000. Under the rules of intestacy the £50,000 will go to the child.

Unmarried, one child, property owned as Joint Tenants

In this final example. Tom and Heather are not married and they own the property as Tenants in Common each owning 50% of the property. This means Tom leaves and estate with a value of £350,000 (half the value of the flat and the £50,000). In this case Heather is entitled to keep her 50% of the property but everything else, Tom’s half of the flat and the £50,000) will go to the child.

What are the other disadvantages of intestate succession?

Aside from the fact loved ones can be excluded from an inheritance because of the intestacy rules on beneficiary rights when it comes to intestate succession, the intestate estate won’t necessarily be divided in a tax efficient way.

For the individual, it means a loss of control and inability to leave assets to those they wish to and how they wish to, and for family members of the deceased individual, it means facing a big inheritance tax bill that could have been avoided had a will been put in place. Furthermore, intestacy rules often cause conflict and additional stress for the family members and loved ones left behind.

Challenging Intestacy Rules

Inheritance (Provision For Family and Dependants) Act 1975

Under the Inheritance (Provision For Family and Dependants) Act 1975, individuals can make an application to the Court for the redistribution of an intestate estate if the original distribution failed to make reasonable financial provision for them as a dependent of the deceased.

However, only certain people are eligible to apply, including the spouse or civil partner of the deceased person, a former spouse or civil partner, a person who lived with the deceased for at least two years, a child of the deceased or someone treated as a child of the deceased, or someone in receipt of financial maintenance by the deceased when they died.

Deed of variation on intestacy

Making a deed of variation or family arrangement involves the beneficiaries rearranging the details of the intestate estate distribution. This needs to be done within two years of the death and all the beneficiaries under the rules of intestacy must agree. It might be that people who do not inherit under the intestacy rules now receive a portion of the estate or there is agreement to change the amount people inherit compared to what’s stated under the UK intestacy rules.

The Law Commission’s Proposals for Reform

The Law Commission has proposed that intestacy rules be reformed to make them fairer and to ensure that an intestate estate can be distributed to family members and loved ones in a way that more accurately reflects modern society.

Reforms include providing protections and beneficiary rights to certain unmarried cohabitants when they have lived together for more than five years, to enable them to inherit from a deceased cohabitant under the intestacy rules UK.

It is estimated that 40% of adults do not have a will. When a person dies without leaving a will, their estate is distributed according to the rules of intestacy, which can result in loved ones unfairly inheriting very little or nothing at all. It is hoped that the proposed reforms for the intestacy system will make intestate succession more straightforward and fairer to family members and loved ones.

Conclusion

Probate law is complex, and many people do not realise the serious implications of dying intestate as the intestacy rules means unmarried couples and their children won’t automatically inherit when a partner dies without a will.

It is hoped that the Law Commission’s proposals for reform will pass into law in the near future and make a significant difference to beneficiary rights and the way an intestate estate is distributed – as well as to the lives of family members and close friends when a loved one dies.

The Law of Intestacy –  Frequent Questions.

To find out who is dealing with intestacy in the UK, you can make an enquiry with the Probate Registry. The Probate Registry is responsible for issuing grants of representation, which give the person dealing with the estate the legal authority to administer it. Alternatively,  if you have enough details about the deceased, Letters of Administration are the documents granted to the person dealing with an intestate estate. Once issued they become a public record. You can search probate public records to see if any grants of representation have been issued for the estate and if they have, the record will include the name of the Administrator.

Partial intestacy is the legal term that comes into play if a will fails to provide instruction on how to distribute the entire estate.

Partial intestacy arises when a valid will exists but fails to cover the entire estate or does not specify beneficiaries for certain assets. In cases of partial intestacy, the assets covered by the will are distributed according to the deceased’s wishes, while the remaining assets are divided as per the intestacy laws.

Intestacy and partial intestacy can lead to complex situations and potential disputes among family members so when this situation arises, it’s important to seek legal advice at an early stage.

The responsibility of applying for probate falls upon certain individuals who are closely related to the deceased.

Spouse or Civil Partner: If the deceased was married or in a civil partnership at the time of their passing, their spouse or civil partner typically takes precedence in applying for probate. However, it’s important to note that the rules may differ slightly depending on the circumstances, such as the size of the estate and whether children are involved.

Children: In the absence of a surviving spouse or civil partner, the responsibility of applying for probate falls to the deceased’s children. In this scenario, all children share an equal entitlement to apply. If the deceased had no children, the entitlement passes on to the next closest relatives, such as parents or siblings.

Parents or Siblings: If the deceased had no spouse, civil partner, or children, the duty of applying for probate typically falls to their parents. If the parents are no longer alive, the responsibility then transfers to the deceased’s siblings. In this case, all siblings have an equal right to apply for probate.

Other Relatives: If there are no surviving spouse, civil partner, children, parents, or siblings, the responsibility of applying for probate can extend to other close relatives, such as nieces, nephews, or grandparents. The specific order of entitlement is determined by the law and can vary based on the circumstances of the case so if there is any doubt, seek the advice of a probate solicitor.

In the UK, pensions can indeed be included in intestacy. However, it’s crucial to comprehend the specific circumstances that dictate how a pension will be distributed.

Defined Contribution Pensions: If you hold a defined contribution pension scheme, your pension pot is considered part of your estate. In the absence of a will, it will be subject to the rules of intestacy, and the distribution will follow the established legal order of precedence.

Defined Benefit Pensions: In the case of defined benefit pensions, the situation is slightly different. These pensions often come with valuable benefits, such as a spouse’s pension or dependents’ benefits. When someone dies, these benefits are typically payable to a spouse or nominated dependents, irrespective of intestacy rules.

Spousal Rights: In the event of intestacy, a surviving spouse or civil partner may have certain rights over the deceased’s estate, including their pension. However, these rights can vary depending on the circumstances, and seeking professional legal advice is highly recommended to fully understand your entitlements.

Given the complexity of intestacy laws and the impact they can have on a pension, taking proactive measures is crucial. Engaging the services of a qualified solicitor or financial advisor can provide valuable insights and help you navigate these intricate matters with confidence.

The answer is no. The laws of intestacy do not allow a cohabitee to inherit no matter how long the relationship or if the couple have created and raised a family together. Considering cohabitees are the fastest growing family group in the UK the law seems very outdated and not a fit with modern society but in the absence of a valid will these are the laws that apply.   Fortunately, cohabitees may have a case to make a claim on the estate Inheritance (Provision for Family and Dependants Act) 1975.

For a cohabitee to be eligible to bring a claim under the Inheritance Act they must have been living in the same household as their partner “as husband and wife” for the entire two-year period ending immediately before the date of the Deceased’s death.

If the relationship meets this criteria a court will then consider;

  • Has reasonable financial provision been made for the cohabiting partner from the estate?
  • If not, what provision needs to be made to satisfy their maintenance needs.

Using the Inheritance (Provision for Family and Dependants Act) 1975 a cohabitee can challenge the laws of intestacy but asking a Court to intervene can be expensive with no guarantee of a positive income. Unfortunately, until the laws of intestacy are reformed the cohabitee of some who dies without a valid will can be left in a precarious position.

In the England and Wales, the role of a personal representative is crucial in handling the affairs of an intestate estate. While their responsibilities involve managing and distributing assets, it is important to understand that they can indeed be subject to legal action if they fail to fulfil their duties diligently.

A intestacy beneficiary, has the right to ensure the proper administration of the estate and the fair distribution of assets. If there is suspicion of  wrongdoing or negligence by the personal representative, it may be possible to pursue legal action against them.

However, it’s important to note that such cases can be complex and expensive and will require a thorough understanding of intestacy laws and the legal process. By enlisting the support of a knowledgeable legal professional, it’s possible to explore your options, understand the merits of your case, and pursue appropriate legal action if necessary.

Absolute interest in intestacy refers to the right and entitlement bestowed upon an individual to inherit the entirety of an estate in the absence of a valid will. When someone passes away without leaving clear instructions regarding the distribution of their assets, the law steps in to determine the fate of their estate. In such cases, the law of intestacy comes into play.

Under the principles of intestacy, the estate of the deceased is divided among their closest relatives in a predefined order of priority. The concept of absolute interest arises when a person, often a surviving spouse or civil partner, is entitled to inherit the entire estate as the primary beneficiary, without having to share it with other relatives.

This means that if you are the spouse or civil partner of an individual who has passed away without leaving a will, you may be the recipient of an absolute interest in intestacy. You would gain full control and ownership over the entire estate, allowing you to manage and distribute the assets according to your own wishes.

It is not a legal requirement to advertise a probate estate in The Gazette so not every intestate state is advertised. However, the majority of estate are advertised especially if they are being manage by a professional probate practitioner. This is because it is strongly recommended that personal representatives do advertise the estate for a minimum period of two months to protect themselves against claims. One of the more common pitfalls that Personal Representatives make during Probate is becoming personally liable for debts from creditors or beneficiaries after the Estate has been distributed. Whilst placing the advert in the Gazette does not offer complete protection, for example claims can still be brought under the Inheritance (Provision for Family and Dependants) Act 1975, it does reduce the risks associated with estate distribution.

While the intestacy rules prioritize direct descendants and close family members, nephews and nieces may indeed inherit from their deceased uncles or aunts but only if no closer relative is in line to inherit. The distribution of an intestate estate typically follows this order:

  • Spouse or civil partner
  • Children
  • Grandchildren
  • Parents
  • Brothers and sisters (full blood)
  • Half-blood siblings
  • Nephews and nieces
  • Grandparents
  • Aunts and uncles

As we can see, nephews and nieces fall within the seventh position, making them potential beneficiaries if none of the preceding relatives exist or are alive.

In England and Wales stepchildren are not automatically entitled to inherit from their step-parent’s estate under intestacy. The law places emphasis on blood relations in this scenario. However, this doesn’t mean stepchildren are completely excluded.

If the deceased step-parent had legally adopted the stepchild, the adoption creates a legal relationship, granting the stepchild the same rights as biological children. This means that adopted stepchildren can inherit from their step-parent’s estate under intestacy, just like biological children.

In situations where no adoption has taken place, stepchildren are not considered direct heirs under intestacy.

Stepchildren can potentially make a claim against the estate under the Inheritance (Provision for Family and Dependants Act) 1975 if they can establish they were financially dependent on the deceased step-parent or if there is evidence of an agreement, such as a promise or understanding, that they would inherit.

Under the current intestacy rules in the UK, cousins do have the potential to inherit but only in certain circumstances. Cousins are classified as “distant relatives” under these regulations, and their eligibility depends on the absence of closer relatives in the inheritance line. The order of priority under the law of intestacy is as follows.

  • Spouse or civil partner
  • Children
  • Grandchildren
  • Parents
  • Brothers and sisters (full blood)
  • Half-blood siblings
  • Nephews and nieces
  • Grandparents
  • Aunts and uncles

The list does not specifically mention cousins but if an aunt or uncle died before the deceased, their children (the cousins of the deceased) inherit in their place. If any of these entitled cousins died before the deceased, their children will inherit in their place.

When a child is legally adopted, their birth parents’ legal relationship is severed, and they become the legal child of their adoptive parents.  In England and Wales, the Adoption and Children Act 2002 ensures that adopted children are treated on an equal footing with biological children in cases of intestacy. This means that adopted children possess the same rights and entitlements as biological children when it comes to inheritance matters.

Half brothers or sisters are individuals who share one biological parent but not both. The intestacy rules primarily focus on close family relationships, such as spouses or civil partners, children, and direct descendants.

Intestacy laws prioritize the concept of the “whole blood” when determining inheritance rights. This means that relatives who share both parents, known as “full” siblings, are given priority over half siblings when it comes to intestate inheritance.

The intestacy order of priority is as follows;

  • Spouse or civil partner
  • Children
  • Grandchildren
  • Parents
  • Brothers and sisters (full blood)
  • Half-blood siblings
  • Nephews and nieces
  • Grandparents
  • Aunts and uncles

Only if there are no full blood siblings, or their direct descendants, still living will a half-brother or half-sister inherit however they do take priority over nephews and nieces, grandparents, aunts and uncles. While half-brothers and sisters do not have automatic entitlement under the intestacy rules, there may be situations where they could potentially claim a share of the estate. This might occur if they can establish a dependency or a financial relationship with the deceased which entitles them to claim under the Inheritance (Provision for Family and Dependants Act) 1975.

The only way Intestacy Rules can be challenged is under the Inheritance (Provision for Family and Dependants Act) 1975 Inheritance Act. Certain individuals, such as spouses, civil partners, or children, may have a legal right to challenge the intestacy rules if they can establish a dependency or a financial relationship with the deceased which entitles them to claim under the Inheritance (Provision for Family and Dependants Act) 1975.  The rules may changed with the consent of a beneficiary via an intestacy deed of variation. 

You can use a Deed of Variation to change how the estate has been divided up under the rules of intestacy. The Deed of Variation can only be made by adult beneficiaries in relation to their own share of the estate.

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