Intestacy - understand the effect of the intestacy rules on applying for probate and who benefits from the estate

What is intestacy and does it apply?

If someone dies without leaving a will, this is known as dying ‘intestate’. In cases like this, the estate is administered in accordance with the Administration of Estates Act 1925, which stipulates who may administer the estate and who may benefit from it. The Administration of Estates Act 1925 applies to anyone whose permanent home was in England or Wales at the time of their death.

If there is a will but it does not deal with the whole estate, then the remainder will be treated under the intestacy rules. This is known as ‘partial intestacy’.

If there is a will but it has been held to be invalid, and if there is no valid and unrevoked earlier will, then the deceased will be considered to have died intestate.

If a will is irretrievably lost then the estate will be intestate. It is possible to obtain probate of a copy will, but this is a complicate process and legal advice should be sought.

Intestacy rules 

The intestacy rules are the principles laid down by law which stipulate how the estate of a deceased is to be administered if there is no will. They contain provision about the order of succession of beneficiaries (which is also the order of priority of people entitled to be appointed administrators of the estate). 

Who benefits under intestacy?

Although the social landscape is changing, one of the more common situations is the presence of a spouse or civil partner and children (where the child is under 18 years old their share of the estate is held in trust until they reach 18 or marry). In a situation like this with no will, the estate is divided as follows.

Intestacy rules for deaths occurring on or after 1st October 2014

The spouse or civil partner will inherit:

  • All the deceased’s personal possessions (known as chattels)
  • The first £250,000 of the estate
  • One half of the remaining estate

The children will inherit:

  • Half of the remaining estate equally between them

The spouse or civil partner inherits the entire estate if there are no children.

Intestacy rules for deaths occurring before 1st October 2014

The spouse or civil partner will inherit:

  • All the deceased’s personal possessions
  • The first £250,000 of the estate
  • A life interest in half of the remaining estate (which means that after their death that share goes back into the residuary estate)

The children will inherit:

  • Half of the remaining estate
  • The right to inherit, upon the death of the surviving spouse or civil partner, the half of the estate in which the spouse/civil partner had a life interest 
  • Where there is more than one child, the estate passes to the children equally.

For more information about life interests, please see ‘Ownership’.

If the matrimonial home forms part of the estate passing under the rules of intestacy, then the spouse or civil partner can ask that the administrator passes all or part of the property to satisfy their entitlement. This request must be made in writing, within 12 months of the grant. If the home is worth more than the spouse or civil partner is entitled to, then they may wish to pay the difference so they can receive the whole property.

If the deceased has only a spouse or civil partner but no children or surviving relatives, then the spouse or civil partner will inherit everything, provided they survive for 28 days following the date of the deceased’s death. However, if there are surviving relatives (other than children) then this may affect the amount the spouse receives.

Intestacy rules relating to all deaths

Regardless of the date of death, if there is no surviving spouse or civil partner, or the deceased was single, then the estate is distributed in the following order:

  • Children: the children will inherit the entire estate, divided equally between them. If one or more of the children has died before the deceased, then their share is passed onto their children (ie the deceased’s grandchildren).
  • Parents: if there are no children or grandchildren then the deceased’s parents will inherit the estate equally, or one parent will inherit all the estate if they are the only surviving parent. Step parents are not entitled to inherit the estate under the laws of intestacy.

The above are the most common examples but should there be no surviving spouse, children or parents, then it is distributed in the following order:

  • Brothers and sisters
  • Half brothers and sisters
  • Grandparents
  • Aunts and uncles
  • Half-blood aunts and uncles (Any half-brothers or half-sisters of the deceased’s parents)
  • The Crown, Duchy of Cornwall or Duchy of Lancaster

(Nieces and nephews, and the children of aunts and uncles (both whole and half-blood), inherit if their parent who would have been entitled to inherit is already dead.)

If the deceased had a partner that they lived with but was not married to or in a civil partnership with, the surviving partner has no automatic right to inherit all or part of the estate.

However, since 1st January 1996, a cohabitee can claim for reasonable provision to be made for them from the estate, if they can prove to the courts that they had lived as ‘husband and wife’ for the two-years prior to the deceased’s death.

Who applies for the grant of probate?

In the event of someone dying intestate someone must make an application to be appointed as an administrator in order to administer the estate. In most cases, it is expected that the closest relative will apply. However, there is a strict order of priority detailing those entitled to apply, which follows the same order of entitlement to inherit the estate on intestacy, ie broadly: 

  • the surviving spouse where the deceased was married or in a civil partnership;
  • children of the deceased;
  • grandchildren;
  • surviving parents of the deceased;
  • surviving brothers or sisters;
  • nephews or nieces of the person who has died; 
  • another relative of the deceased.

If there are multiple applications, the person who is the highest on the priority list will be appointed as the administrator. In the event that the applicant is under 18 years old or there is a life interest in the estate (see ‘Ownership’ for more information on life interests), then there must be two administrators.

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  • Grant of probate

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  • DIY probate

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  • Estate accounts

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  • Distribution of the estate

    Guidance for personal representatives on the steps necessary to distribute the estate

  • Probate fees

    There is usually an application fee to pay when you apply for probate