Law of Intestacy: What are the Rules of Intestacy Law?

If someone dies without a valid will, that person is said to die intestate and the law sets out all who may inherit under the Rules of Intestacy originally brought in under the Administration of Estates Act 1925, and more recently updated in February 2020. The process of dealing with the estate is the same as with Probate (where there is a valid will) but where there is no valid will there will be a Grant of Letters of Administration needed.

A person’s inheritance is determined by both the value of the estate and the relationships of surviving family members. No-one can inherit automatically if they weren’t in a formal legal relationship with the person who died, either through marriage or civil partnership, or by being a blood relation.

The term ‘common-law husband or wife’ is often used, but this relationship is not recognised in law. This means unmarried partners do not inherit from their partner who has died. It would be helpful to take legal advice because the situation may be complicated by assets that were owned jointly.

The following Flowchart might help you see how these rules operate in practice.

How Do Intestacy Rules Apply in Practice?

If an estate is worth less than £270,000, a surviving spouse or civil partner will inherit the whole estate including all personal effects, but only if they survive at least 28 days after the death of the person who has died intestate.

So, for example, if a wife dies just three weeks after her husband, the Rules of Intestacy specify that his estate goes to his children or other of his close relatives (if there are no children), whether or not the wife has made a valid will. Her will now becomes irrelevant to how his assets are divided. It remains relevant to anything she owned solely in her own name.

For estates over £270,000 the position becomes more complex: the estate is divided between a surviving spouse or civil partner, and the children of the person who died. Stepchildren have no entitlement and neither does anyone else whose relationship to the person who died is not by blood. The exceptions are adopted children who have full rights equal to a birth child.

If children are entitled to inherit under the Rules of Intestacy, and one of the entitled children has died before the current death, their share passes to their descendants, if any. This applies to every level of entitled relatives.

Who Inherits if There are No Living Relatives?

If there are no living relatives who can inherit under the Rules of Intestacy the law gives the whole estate under Bona Vacantia which in essence gives everything as “ownerless property”.

How Can Intestacy Rules be Avoided?

This highlights how important it is to make a valid will and seek proper legal advice for this, particularly if the application of the rules of intestacy would not do what you want to happen on your death. The opportunity can also be taken, if suitable, to explore ways of legally minimising some or all exposure to Inheritance Tax.

If everyone inheriting under the Rules of Intestacy is in agreement and are adults with full mental capacity, it may be possible to enter into a Deed of Variation (also called a Deed of Family Arrangement. Legal advice should always be sought at the earliest opportunity to ensure this is done correctly and within the right time limits.