Private client solicitor, Shauna Telford, explains what the intestacy rules are and when they come into play during the probate and estate administration process.
What is intestacy?
If someone dies without a will, they are deemed to have died intestate.
The intestacy rules come in when there is no Will and detail how the individual’s estate is to be distributed. These rules are set in place by statute, in other words, in law, and they outline how an estate is to be distributed.
Who Inherits Under Intestacy Rules?
1. Married or Civil Partners
- If there are no children, the surviving spouse or civil partner inherits everything.
- If there are children, the spouse gets:
- All personal belongings.
- The first £322,000 of the estate.
- Half of the remaining estate.
- The other half is divided equally among the children.
2. Children
- If there is no surviving spouse, children inherit everything, divided equally.
- Adopted and biological children are treated the same.
- Stepchildren do not inherit unless legally adopted.
3. Other Relatives (if no spouse or children)
- Parents (if they are alive) inherit the estate.
- If no parents, siblings inherit.
- If no siblings, the estate goes to grandparents, then aunts/uncles, then cousins.
- If no relatives exist, the estate goes to the Crown (the government).
What about Jointly Owned Property?
If a home is owned as ‘joint tenants’, the surviving owner automatically inherits it. If owned as ‘tenants in common’, the deceased’s share follows the intestacy rules.
Survivorship period
The 28-day rule on intestacy applies to spouses and civil partners. If a person dies without a will, their surviving spouse or civil partner must survive them for at least 28 days after their death to inherit under intestacy rules. If they die within that period, they are treated as if they predeceased (died before) the deceased, meaning the estate is distributed to the next eligible relatives (such as children or parents) instead. This rule is in place to prevent estates passing between spouses in situations where they die in quick succession, i.e.one after the other, and to ensure there is a fair distribution between the surviving family members.
No Inheritance for unmarried partners
If a couple is not married or in a civil partnership, the surviving partner does not automatically inherit. This is extremely important, often when I meet with clients, it is a common misconception that the surviving partner will inherit the whole of the estate, but unfortunately, the distribution of the estate can be quite different from what they were expecting.
We often hear the term ‘common law wife’, but this is not a term referred to in law.
Can the intestacy rules be challenged?
Yes, distribution by way of the intestacy rules can be challenged. Individuals can still apply to the court under the Inheritance (Provision for Family and Dependants) Act 1975. Our Wills and Estate Dispute team can guide you through the process of challenging the intestacy rules.
Avoid the Intestacy Rules by leaving a Will
This highlights the importance of having a Will in place to ensure that your assets are distributed as per your wishes on your death. It ensures that there is no uncertainty about what will happen to your assets, and less worry for your loved ones at what will be a very difficult time for them.
Our Wills and probate team will gladly help you should you need any assistance preparing your Will. As part of our will-writing service, we will also advise you on inheritance tax planning.
About the Author
Shauna Telford is an experienced solicitor within our private client department. Based in Crystal Palace, Shauna specialises in will writing, probate, and estate administration.
