Losing a loved one is an emotional process, and when someone passes away without a Will, the courts will be entrusted to decide who inherits the estate. This post aims to explain what intestacy is, who is able to inherit through intestacy and the various associated rules, as well as the steps that you can take to avoid it becoming a reality. If you would like some support or information regarding the intestacy process, our experienced Intestacy Solicitors are here to help.
What is intestacy?
When someone passes away without leaving a valid Will, they are classed as having died ‘intestate’. In the absence of a Will, there is no written confirmation regarding who the deceased wished to pass their estate and assets onto. This can cause an increased emotional toll on family members as the Administrators will need to determine the value of the estate and who the beneficiaries are, following a hierarchy of heirs that is set out in intestacy law.
Who can inherit under intestacy?
In these circumstances, there are a number of rules that the Administrators must adhere to before confirming any inheritance. The first being the value of the estate, and the second, the remaining living relatives. Depending on the final value, this determines whether it is suitable for a single heir or not.
The priority of heirs in England and Wales is as follows:
- A spouse or civil partner (including those who are separated, but not yet divorced)
- Children of the deceased including any adopted children
- Living parents
- Full-blood siblings
- Half-blood siblings
- Grandparents
- Aunts and uncles
- Half-blood aunts and uncles
Rules for spouses and civil partners
As mentioned above, the inheritance is determined by the value of the estate and the remaining living relatives. Current laws specify that a spouse or civil partner will receive the first £322,000, along with any personal property or belongings. If the estate is worth more than this, they will also receive half of the amount above this threshold.
If there is any additional property to consider, the spouse or civil partner will also inherit the deceased’s share, as long as they were beneficial joint tenants.
If the living spouse has any children who are not blood relatives of the deceased or who have not been officially adopted, they are unable to inherit through the rules of intestacy.
Rules for children and grandchildren
Children are included within the inheritance when there is no living spouse or civil partner, or the value of the estate is more than £322,000. If the former, the full estate is divided equally between any children. The latter means that any additional value over £322,000 is split equally between children, and the living spouse.
Grandchildren of the deceased are only able to inherit in circumstances where their parent or grandparent has died before the intestate person.
What if there are no surviving relatives?
If there are no identifiable surviving relatives, the estate will be held for 12 years under ‘bona vacantia’, or ‘vacant goods’. It still has the potential to be claimed by anyone who believes to have a good reason to apply, however if it is not claimed, after 12 years it is passed to the Crown.
Avoiding intestacy
The most effective way to avoid having to enter the intestacy process is to ensure that there is a valid Will in place. Encouraging family members, no matter their age, to contact an experienced solicitor to draft a Will means that should the worst happen, their wishes are clearly laid out and beneficiaries noted.
Conclusion
The rules of intestacy is a strict process that the courts will follow should someone pass away without a valid Will in place. We have explored who inherits under these rules, and the various requirements related to different family members. If you would like further information about intestacy, and how our experienced solicitors can support you through the process, please get in touch with us today.
For more information about drafting a Will, you can read more about our Will writing services here.
FAQ’s
Can intestacy rules be challenged?
Yes, it is possible to challenge the rules of intestacy under certain circumstances. For example, if you were in a relationship with the deceased or were financially dependent on them. If you wish to challenge, we highly recommend seeking the advice of an experienced solicitor, as an application will need to be made to the court within six months of the “Letters of Administration” being granted.
What is partial intestacy?
Partial intestacy is when not all of the deceased’s assets are accounted for in the Will. In this instance, only these specific assets fall under intestacy and are managed by the Administrators.
How long does intestacy take?
Depending on the individual circumstances of the case and whether any complexities or additional claims arise, an intestate estate can be finalised within as little as six months, or take as long as two years.
Is there a time limit on intestacy?
There are a couple of notable time limits when dealing with an intestate estate. For anyone not included within the ‘priority of heirs’ wishing to make a claim, this can be submitted under the Inheritance (Provision for Family and Dependents) Act 1975, but has to be done so within six months of the Grant of Letters of Administration.
If there are no suitable claims on the estate and no identifiable living relatives, the estate is held by the courts for 12 years. After this period, it is transferred to the Crown and is no longer claimable.
What is the 28-day rule?
The 28-day rule of intestacy refers to a ‘survivorship period’, relating to the spouse of the deceased. They are unable to inherit during this period, and if they die within this time, they are treated as having not survived the deceased.
Can step children inherit?
The current law states that step children cannot inherit assets under the rules of intestacy, unless they were legally adopted.
Can cousins inherit under intestacy?
Cousins can inherit under intestacy, however there is a requirement that there are no living relatives in the ‘priority of heirs’. This means that there cannot be any living spouses, civil partners, children/adopted children, parents, full-blood siblings, half-blood siblings, grandparents or aunts and uncles (full and half-blood).
