Rules of intestacy

What are the rules of intestacy?

Under the Administration of Estates Act 1925 (AEA 1925), intestacy rules apply when a person dies without making a valid will. The rules under dictate how the deceased’s estate will be divided up.

Personal representatives power of sale

When someone dies intestate, under s 33 of AEA 1925, a trust is created which allows the personal representatives of the intestate the power of sale. This includes providing the personal representatives with the power to pay for the funeral of the deceased, the testamentary and administration expenses, as well as any debts of the deceased. The balance remaining will then be the ‘residuary estate’ that will be shared among family members according to the intestacy rules.

Spouse/civil partner of the deceased

Under intestacy rules, a spouse is somebody who was married to the intestate at the time of their death, whether or not they were living together. The same rules apply to civil partners of the deceased. A divorced spouse is excluded (although partners who are informally separated can inherit under the rules) and a cohabitee has no rights under the intestacy rules.

If there are no surviving children, grandchildren or great-grandchildren, the spouse/civil partner will inherit:

  • all the personal property and belongings of the person who has died; and
  • all of the estate with interest from the date of death.

If there are surviving children, grandchildren or great grandchildren of the deceased and the estate is worth more than £250,000, the partner will inherit:

  • all the personal property and belongings of the person who has died;
  • the first £250,000 of the estate;
  • half of the remaining estate.

Where a surviving spouse/civil partner had a joint bank account with the deceased, they will inherit all the money. They will also inherit outright any real estate property owned with the deceased as beneficial joint tenants at the time of death. Property and money owned jointly in this manner and inherited by the surviving partner does not count as part of the estate of the deceased governed by the intestacy rules.

A spouse or civil partner must survive the intestate by at least 28 days to be able to benefit from the residuary estate. If they die within 28 days, the estate will be distributed as if the deceased was not married.

Children

Children of the deceased will inherit nothing if the estate is worth less than £250,000. If it is worth more than £250,000, they will receive one half of the estate worth over the £250,000 threshold. If there are more than two children they will each inherit the same amount. This rule applies regardless of whether they are children of the existing marriage/civil partnership. Adopted children can also inherit in the same way. Children will only receive their inheritance after they reach the age of 18 or marry/enter a civil partnership (whichever happens first). Until this time, their money will be managed by a trustee.

Grandchildren and great grandchildren

Grandchildren and great grandchildren will inherit equal shares of the share to which their parent or grandparent would have been entitled if:

  • their parent or grandparent dies before the intestate person; or
  • their parent is alive when the intestate person dies but dies before reaching the age of 18 or without marrying/forming a civil partnership.

Other family

If someone dies intestate and they have no surviving spouse/civil partner or children/grandchildren, the residuary estate will be divided between the intestate’s relatives in the following order:

  • parents;
  • whole blood siblings (or their children if any sibling pre-deceased the intestate);
  • half blood siblings;
  • grandparents;
  • uncles and aunts of whole blood;
  • uncles and aunts of half blood.

If there are no surviving relatives who can inherit under the rules of intestacy, the estate passes to the Crown and thereafter the Treasury Solicitor is responsible for dealing with it. This is known as bona vacantia. People who aren’t surviving relatives can apply for a grant from the estate, but the Crown does not have to grant it.