Rules of intestacy – no will or invalid will

If a person dies without making a will or if a will is not legally valid, their goods, property and possessions (their estate) will be divided according to specific legal rules, irrespective of who the deceased would have wanted to inherit their estate. This is one reason why making a will is so important.

Only spouses or civil partners and some other close relatives will automatically benefit under the rules of intestacy.

Married persons and civil partners

Married persons and civil partners inherit automatically under the intestacy rules if they are married at the time of death. A divorced person will not inherit under the rules.

Partners who are separated can still inherit under the rules. Cohabiting partners (sometimes known ‘common-law’ spouses) who were neither married nor in a civil partnership cannot inherit under the rules.

If there are surviving children, grandchildren or great grandchildren of the deceased died and the estate is valued at more than £250,000, the partner will inherit:

  • all the personal property and belongings, and
  • the first £250,000 of the estate, and
  • half of the remaining estate.

Property jointly-owned

The two different ways of jointly owning a home are as beneficial joint tenants and tenants in common.

The surviving partner of property owned as joint tenants will automatically inherit the other partner’s share of the property when the first partner dies. The surviving partner does not automatically inherit the other person’s share if the partners are tenants in common.

The survivor of a joint bank or building society account will automatically inherit the whole of the money if one partner dies.

When an estate is valued under intestacy rules, any property and money that the surviving partner inherits does not count as part of the estate of the person who has died.

Children

Children of a deceased person who dies intestate will inherit if there is no surviving married or civil partner. If there is a surviving partner, they will inherit only if the estate is worth more than £250,000. All children inherit equally even if the children come from different relationships.

A child whose parents are not married or have not registered a civil partnership can inherit from a parent who dies intestate under the rules. These children can also inherit from grandparents or great-grandparents if they have died intestate.

Adopted children including step-children who have been adopted by their step-parent have rights to inherit but otherwise you have to be a biological child to inherit.

Children receive an inheritance under the rules when they reach 18 or marry or form a civil partnership under the age of 18.

Grandchildren

A grandchild or great grandchild cannot inherit from the estate unless:

  • their parent or grandparent has died before the intestate person, or
  • their parent is alive when the intestate person dies but dies before reaching the age of 18 without having married or formed a civil partnership.

The grandchildren and great grandchildren will inherit equal shares of the share to which their parent or grandparent would have been entitled.

Other relatives

Brothers, sisters, nieces, nephews and parents of a person who has died intestate may inherit under the rules but it depends on the circumstances:

  • whether there is a surviving married or civil partner;
  • whether there are children, grandchildren or great grandchildren;
  • in the case of nephews and nieces, whether the parent directly related to the person who has died is also dead; and
  • the amount of the estate.

The order of priority amongst other relatives of the person who has died intestate and has no surviving married partner or civil partner, children, grandchildren, great grand-children, parents, brothers, sisters, nephews or nieces is as follows:-

  • grandparents;
  • uncles and aunts. A cousin can inherit instead if the uncle or aunt who would have inherited died before the intestate person;
  • half-uncles and half-aunts. A half-cousin can inherit instead if the half-uncle or half-aunt who would have inherited died before the intestate person.

People who cannot inherit

There is no right for the following people to inherit under the rules of intestacy:

  • unmarried partners;
  • lesbian or gay partners not in a civil partnership;
  • relations by marriage;
  • close friends; and
  • carers.

However, those who cannot inherit under the rules of intestacy may be able to apply to court for financial provision from the estate.

No surviving relatives

If there are no surviving relatives the estate passes to the Crown.

If you are not a surviving relative and believe you may be entitled to a grant you should obtain legal advice.

Sharing property without a will

It is possible to arrange the way property is shared out without a will provided this is done within two years of the death. This is called making a deed of family arrangement or variation but all the people who would inherit under the rules of intestacy must agree.

Financial assistance

You may be able to apply to the court of the person who has died intestate for reasonable financial assistance in various circumstances. For example, if you lived with the person who has died for at least two years before their death but were not married to them, you would not inherit under the rules. However, you could apply to court for reasonable financial assistance. Another example would be if you were always treated by the person who died as a child of the family.

An application for financial assistance must be made within a certain time limit although in some limited circumstances this can be extended.

The court may order regular payments from the estate, a lump sum payment from the estate, or property to be transferred from the estate.

Rejecting an inheritance

It is possible to reject an inheritance but there are special rules about this.