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Intestacy occurs where an individual died leaving no valid will – where there is a valid will, which disposes only of part of an estate, this is known as a partial intestacy.
In intestacy, the law specifies the order of those entitled to share the estate and these are known as the intestacy rules. If a relative or other dependant feels that this does not make sufficient financial provision then they may be entitled to make a claim under the Inheritance (Provision for Family and Dependants) Act 1975 (see separate briefing note).
It is only possible to set out a simplified summary of the intestacy rules here and specific advice should be taken but:
If the deceased dies leaving no surviving spouse the estate is divided:
| (1) |
To surviving children (on trust if the children are minors) or if there are no surviving children. |
| (2) |
To surviving parents (equally if both are alive) but if neither survive - |
| (3) |
To surviving children by the same parents but if none |
| (4) |
To surviving children who share a single common parent, but if none |
| (5) |
To surviving grandparents (equally if both are alive) but if none |
| (6) |
To surviving uncles and aunts (first those sharing both parents of the deceased or if none, those sharing one parent of the deceased) or if none – |
| (7) |
To the crown – known as “bona vacantia”. |
It is worth pointing out that for the purposes of intestacy, an adopted child is treated as a child of their adoptive parents and not of their birth parents.
If the deceased died leaving a surviving spouse, the spouse takes the entire estate outright unless:
| (1) |
The deceased also left children, grandchildren etc. in which case the estate is shared or |
| (2) |
There are no surviving children etc. but there is instead a surviving parent (s), in which event the estate is again shared. |
A divorced former spouse or civil partner has no automatic rights under the intestacy rules. A common law cohabitee has no automatic entitlement under the intestacy rules and instead must rely upon a possible claim under the Inheritance Act.
If the estate falls to be divided between the surviving spouse and others (as at paragraphs 1 and 2 above), the spouse is entitled to:
| (i) |
The deceased’s personal belongings and effects. |
| (ii) |
An outright capital sum of £250,000 known as “the statutory legacy” (or £450,000 where there are no children). |
| (iii) |
If the deceased and the surviving spouse held the family home (and indeed any other land) as joint tenants (for definition see elsewhere on this site) title of the entire property will pass automatically to the survivor – in addition to the entitlement
to a statutory legacy. |
| (iv) |
The remainder of the estate is divided so the surviving spouse receives a lifetime entitlement to the income from one half of the remainder of the residue (known as a life interest) and the other half of the residue and the life interest (upon the
death of the surviving spouse) goes to surviving children. |
Intestacy will often deliver great injustice and hardship to families. That set out above can be no more than a very brief summary of a complex area of law.
Lawson Lewis & Co are able to offer specialist advice in relation to:
- Preparation of wills and testamentary planning.
- Deeds of variation – a method of providing a consensual variation of an Estate post death – see separate briefing note.
- Advising and acting in relation to possible inheritance Act Disputes.
- Administration of Intestate estates.
We are able to offer specialist advice please contact:-
| Masayo Crumbie, Wills |
(Eastbourne) (01323) 720142 E-mail |
| Robin Comber, Wills |
(Eastbourne) (01323) 720142 E-mail |
| Nicola Davies, Wills |
(Eastbourne) (01323) 720142 E-mail |
| Joni Parrington, Wills |
(Peacehaven Office) (01273) 582680 E-mail |
| Steven Judge, Dispute Resolution |
(Estbourne & Peacehaven Office) (01323 720142) E-mail |
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