Intestacy  – There’s no Will – what should I do?

When a loved one passes without leaving a Will, they are said to have died ‘Intestate’ and their estate should be administered in accordance with the ‘Rules of Intestacy’. This sets out who can administer the estate, and who can benefit from it. Intestacy occurs where:

  • There is no Will
  • The Will in invalid, for example not properly witnessed
  • The beneficiaries died before or with the deceased
  • The Will is revoked prior to death

There is also a situation called ‘Partial Intestacy’ where there is a Will, but it does not deal with the Residue of the Estate for example. If this occurs the Estate should be administered in accordance with the Will, and the Residue in accordance with the Rules of Intestacy.

Who can apply to administer the estate when there’s no Will?

The next of kin are responsible for administering their loved one’s estate when there’s no Will. The law sets out the order of priority for who is considered next of kin:

1 Husband, wife or registered civil partner

2 Children

3 Grandchildren

4 The parents

5 The brothers and sisters

6 Nieces and nephews

7 Half brothers and sisters

8 Children of half brothers and sisters.

9 Grandparents

10 Uncles and aunts

11 Cousins

12 Half uncles and aunts

13 Children of half uncles and aunts

Obtaining ‘Letters of Administration’

The next of kin apply to the Probate registry for a ‘Grant of Letters of Administration’ and they are known as Administrators. This is very similar in all respects to where there is a Will, but the language is different. Where there is a Will the Executors apply for a ‘Grant of Probate’. Just to confuse matters ‘Probate‘ has become the generic name for both a ‘Grant of Probate‘ and a ‘Grant of Letters of Administration’. Also in both instances Executors and Administrators are referred to as the ‘Personal Representatives’ of the deceased.

Who inherits what under Intestacy?

The right of a person to benefit on intestacy depends on that person’s relationship with the deceased and which other relatives who are alive at the death of the deceased. The law aims in the first instance to protect the deceased’s immediate family, the husband, wife or registered civil partner (surviving spouse) and children.

People who are not part of the deceased’s family (for example, an unmarried partner) have no rights on intestacy, although they may have a claim against the Estate.

There is a list of priority on who inherits what, and the general principle is that the Estate is shared by the relatives in the highest category, to the exclusion of all others below them. The main exception to this is if a child’s parent was due to inherit, but their parent has already died, that child would take their parents share.

Where there is no surviving spouse the order is:

  1. Children or their descendants
  2. Parents
  3. Brothers and sisters or their descendants
  4. Half brothers and sisters or their descendants
  5. Grandparents
  6. Uncles and aunts or their descendants
  7. Half uncles and aunts or their descendants
  8. The Crown

Where there is a surviving spouse and children, the surviving spouse receives:

  1. Personal belongings
  2. The first £250,000 free from tax
  3. A full entitlement to half of what is left over
  4. The children receive the other half of what’s left over (when they reach 18)

Where there is a surviving spouse but no children, the surviving spouse receives everything.