The rules of intestacy play an important role in deciding how an estate should be managed and executed if someone passes away without leaving a will.
The intestacy rules are designed to provide structure and fair distribution of deceased assets. However, it is important to note that this distribution may not align with the wishes and intentions of the deceased or the family's expectations. Creating a valid will is the only way to ensure your estate is handled following your wishes.
What is the process when someone dies intestate?
When someone dies without a will, they are said to have died intestate. In these cases, there is a detailed set process to follow.
Appoint an administrator
- The Non-Contentious Probate Rules 1987 sets out the order of priority for those entitled to act as administrator. The administrator is usually the closest relative to the deceased, usually a spouse or eldest child. Their role is to apply to the probate registry for the grant of letters of administration. Also known as the grant of probate when the deceased has died with a valid will.
- The grant of letters of administration gives the administrator legal authority to start dealing with and administering the estate.
- The administrator will need to fill in the Inheritance Tax form, even if there is no inheritance tax to pay and the PA1 form (to apply for probate)
- The administrator must sign on oath that the contents of these forms are accurate to the best of their knowledge.
The estate's value and management
The administrator is responsible for creating a list of the deceased's assets and debts and informing organisations of the death, including banks, utility companies, pension providers, and Government bodies. The Tell Us Once service can help with this process.
It is also the responsibility of the administrator to calculate and pay any liabilities and tax that's owed; this includes income tax and inheritance tax. Once all debts are paid, they can distribute the remaining assets from the estate in accordance with the intestacy rules.
This is a long process, and many administrators instruct probate professionals to assist with the day-to-day management of estate administration.
Who inherits if there is no will?
If a person dies without a will, the intestacy rules in England and Wales will dictate who inherits from the deceased estate. The order of priority is set out in Section 46 of the Administration of Estates Act 1925.
In brief, the order of people who could inherit from an estate is below:
- A spouse or civil partner
- The children of the deceased (including legally adopted children, but not stepchildren unless legally adopted)
- Parents of the deceased
- Siblings (if deceased, their children would inherit their share)
- Half-siblings
- Grandparents
- Aunts and uncles (if they are deceased, their children would inherit their share)
The surviving spouse would inherit everything if the deceased was married or in a civil partnership and had no children.
Where the deceased was married or in a civil partnership and had children (including adopted children). The surviving spouse inherits the first £322,000 plus all personal possessions and half of the remaining estate. The other half of the remaining state is shared equally between children.
If there is no spouse but the deceased had children, the children would inherit an equal share of the entire estate. When a child has predeceased but has children of their own, the deceased's grandchildren would inherit their parent's share.
If the deceased has no spouse or children, then their parents, if still alive, would inherit the estate in equal shares. If their parents are no longer alive, the deceased siblings or their children, if a sibling has predeceased, would inherit the estate.
In rare cases where there are no siblings or children of siblings, any half-siblings of the deceased would inherit. Finally, if none of the above is applicable, grandparents, aunts and uncles, or their children would inherit the estate.
Please note that these rules are for England and Wales and differ in Scotland and Northern Ireland.
The deceased's estate will pass to the Crown if there are no surviving family members.
Regardless of the length of the relationship, unmarried partners will not inherit under intestacy rules.
If the deceased's partner was financially dependent and had lived with the deceased for a period of two years, they may be able to make an application to the Court for reasonable financial provision under a particular section of the Inheritance (Provision for Family and Dependents) Act 1975. An application might still be possible if they had not been living together for two years but were financially dependent upon the deceased.
Similarly, anyone else financially dependent upon the deceased or to whom the deceased owed a financial responsibility may be able to bring such a claim. Again, advice as to the merits should be sought from a legal advisor.
Who or what is the 'next of kin'?
There is no legal definition of next of kin in the UK. However, it is generally accepted as being the closest living relative. The next of kin does not automatically have any legal rights or responsibilities on behalf of an individual. Once the Grant of Representation is issued (i.e. a Grant of probate or Grant of Letters of Administration), the person or persons named in that Grant will then have the legal authority to manage and administer the deceased's estate.
It's important for everyone to understand these rules and the implications of not having a valid will. Without a will, your estate could not be shared in the way you would like on your death. A properly drafted will is the only way to ensure your wishes are carried out.
Resolving inheritance disputes
If someone disagrees with the estate distribution, and all beneficiaries agree, it may be possible to vary the distribution using a deed of variation. However, legal advice may be needed if an agreement cannot be reached with the beneficiaries.
If someone has not inherited from the estate, they may be able to apply to Court for reasonable financial provision under the Inheritance (Provision for Family and Dependants) Act 1975.
However, only certain people are entitled to apply to the Court, and the Court's intervention is not guaranteed. Legal advice should be sought as to whether an application to Court should be made and, if so, whether it should be made without delay, as there are time limits.
