What is Intestacy?
This topic covers off the following themes:
What is intestacy?
When someone dies without a Will, their estate must be distributed following the rules of intestacy. The intestacy rules dictate who is entitled to inherit by law when there is no Will expressing the deceased’s wishes.
The term intestate is often used for describing a person who died without a Will. For example, “the person died intestate”. It is also used to describe the estate, e.g. “intestate estate”.
It is possible for someone to leave a Will that doesn’t effectively outline how certain assets should be disposed of. This is usually classed as the intestate part of an estate (also known as partial intestacy). An example of this is if the deceased solely owned property but did not mention how they would like it to be disposed of in the Will. In the case of partial intestacy, all the wishes in the Will should be carried out as stated and the intestate part of the estate should follow the intestacy rules.
Find out who inherits if there is no Will.
What if I know there is a Will but I can’t find it?
It can sometimes be difficult to know where to look if you’re aware that the deceased had a Will, but you do not have instructions on how to retrieve it. The Will may be held at their home, with the deceased’s solicitor or bank, at the London Probate Department or in a secure Will storage facility.
If you’re aware of the original Will writer, you should contact them to ask if they know where the Will is located. You can also check with the deceased’s solicitor or bank to see if they’ve got the Will. If you’re still unable to find a Will, you may find instructions about where the Will is located within the deceased’s possessions as the London Probate Department and many secure Will storage facilities will issue a deposit certificate.
You can try using a Will search service. Certainty, the National Will Register, offers Will searches for a fee. Many Will writing professionals will register the existence and location of the Wills they create with Certainty to make them easier to find.
You can also contact solicitors and Will writers in the local area to where the deceased lived to find out if they hold a Will.
If you still can’t find a Will, you will typically have to submit a lost Will questionnaire (form PA13) and the estate is likely to treated as an intestate estate.
Who does the estate pass to if there's no Will?
The law in each country decides who inherits when there is no Will and the intestacy rules set out who the estate should pass to. If you’re the Administrator on an estate where the deceased did not have a Will that specified how their estate should be distributed, you will be required to follow these rules.
England, Wales and Scotland
Under the intestacy rules in England, Wales and Scotland, if the deceased has a living husband, wife or civil partner and the estate is not worth more than £250,000 then the spouse or civil partner is entitled to everything. When the estate is worth more than £250,000 and the person who died has children, the children will receive half of the remaining estate and the spouse or civil partner is entitled to the other half. No matter the value of the estate, the spouse or civil partner inherits all of the deceased’s personal belongings.
If the person who died did not have a spouse or civil partner but did have children, the estate would be equally split between the children. If a son or daughter has already died, their children (the deceased’s grandchildren) would inherit in their place.
In England and Wales, the order of priority after children/grandchildren is as follows; living parents, full-blood siblings, half-blood siblings, grandparents, aunts/uncles and half-blood aunts/uncles. In Scotland, great aunts/uncles are entitled after half-blood aunts/uncles.
If a relative has passed away, their descendants are entitled to inherit on their behalf. For example, a cousin may inherit if the aunt/uncle has already passed away or a niece/nephew would inherit if a sibling had predeceased.
Northern Ireland
The intestacy rules are slightly different in Northern Ireland. If the deceased has a living husband, wife or civil partner and the estate is not worth more than £250,000 then the spouse or civil partner is entitled to everything (like in the rest of the UK). Although, the husband, wife or civil partner must always survive the deceased by at least 28 days to inherit.
When the estate is worth more than £250,000 and the person who died has more than one child, the children will receive two thirds of the remaining estate and the spouse or civil partner is entitled to one third. If the deceased only had one child, the remainder of the estate above £250,000 is divided in half between the spouse or civil partner and the child. No matter the value of the estate, the spouse or civil partner inherits all of the deceased’s personal belongings.
If the deceased had a spouse or civil partner, did not have children and the estate is worth more than £450,000, then the spouse or civil partner will receive half of the amount left over and the other half will go to the next relatives entitled to inherit. The order of priority after children/grandchildren is as follows; living parents, siblings, grandparents, aunts/uncles.
If the person who died did not have a spouse or civil partner but did have children, the estate would be equally split between the children. If a son or daughter has already died, their children (the deceased’s grandchildren) would inherit in their place.
If the deceased did not have a spouse/civil partner or children, then living parents would be the next to inherit, followed by siblings, grandparents and aunts/uncles.
If a relative has passed away, their descendants are entitled to inherit on their behalf. For example, a cousin may inherit if the aunt/uncle has already passed away or a niece/nephew would inherit if a sibling had predeceased.
What makes a valid Will?
In order for a Will to be legally valid, the person creating the Will must be:
• 18 years or older
• Be making the Will voluntarily
• Be of sound mind
• Make the Will in writing
• Sign the Will in the presence of two witnesses who are over 18.
• Have the Will signed by two witnesses, in the presence of the Testator (the person who has made the Will)
The witnesses (or their spouses or civil partners) must not be named as beneficiaries in the Will.
If someone makes changes to their Will, they must follow the same signing and witnessing process as when they created the Will.