If you don’t have a will the rules of intestacy will apply. Similarly, if there are no surviving residuary beneficiaries in your will then the rules of intestacy will come into play. Finally, if you don’t have any executors who are able to act then a “partial intestacy” will occur.
This note will:
1. Set out the different types of intestacy that occur;
2. Explain who will inherit in an intestacy situation; and
3. Who can act as Personal Representatives for an intestate estate.
Types of Intestacy
Total Intestacy
Where there is no will or none of the wishes in a will can be carried out. This can happen when:
- There is no will;
- A will is invalid (e.g. it has not been executed properly);
- Any previous wills have been revoked but no new will has been made; or
- A will does not effectively dispose of any property.
Partial Intestacy
When only part of the estate has been disposed of in a will or when some of the wishes in a will are incapable of being carried out and the rules of intestacy have to be applied.
A common example might be where the residuary beneficiaries or the executors have died.
Who will inherit?
Unmarried/ widowed
If you die when unmarried then your estate passes to relatives in accordance with the statutory rules of intestacy. The estate will pass in whole to the person or people highest on the following list. If there is more than one person in a particular class of beneficiaries then that class of beneficiaries will inherit in equal shares.
1. Your children/ grandchildren etc;
2. Your parent or parents;
3. Your full siblings (or their children/ grandchildren if they have died before you);
4. Your half siblings (or their children/ grandchildren if they have died before you);
5. Your grandparents;
6. Your uncles or aunts (or their children/ grandchildren);
7. Your half-uncles or aunts (or their children/ grandchildren); or finally
8. The crown estate.
If you want to learn more about who would inherit in your situation you can use the Government’s intestacy tool here.
Married/ civil partner – with children
If you are married or in a civil partnership then the following will apply if your spouse or civil partner survives you by more than 28 days:
S46(2)(A) of the Administration of Justice Act 1925 states that a spouse inherits personal chattels of the deceased. Chattels are defined by s55(i)(x) of the Administration of Justice Act 1925 as tangible moveable property other than money/ securities assets used solely for business or investments.
S46(2)(B) of the Administration of Justice Act 1925 states that the spouse receives a fixed net sum free of death duties and costs (plus simple interest). Schedule 1 A of the Administration of Estates Act 1925 determines the fixed net sum to be provided to the spouse. This is currently £322,000.
S46(2)(C) deals with the remainder of the estate after chattels and the fixed net sum. The spouse receives half and any issue of the deceased receive the other half of the remainder of the estate.
Married/ civil partner – without children
If you are married or in a civil partnership and a full intestacy occurs then your spouse or civil partner will inherit your whole estate.
Who can be personal representative?
Rule 22 of the Non Contentious Probate Rules 1987 sets out the order of priority of people who can apply to be personal representatives.
These are largely the same as the order of who can benefit. The most common being:
1. Surviving spouse or civil partner;
2. Children of the deceased;
3. Parent of the deceased.
If only children who are under 18 have survived the legal parent or guardian can make an application to act until the child reaches 18 years old.