Intestacy – where there is no will

Where someone dies without a will this is called “intestate”. Their property is dealt with under the “intestacy rules” and goes to those who the law dictates.

People might not have a valid will because either:

1. A will was never made
2. A will was made but later revoked, either expressly or by operation of law (e.g. re-marriage)
3. The will is invalid for some reason e.g. it is not signed properly
4. A sole beneficiary may have died before the deceased and there are no appropriate substitutionary provisions or a divorce might have taken place

Intestacy rules are sometimes inappropriate as they do not include many modern family relationships. Unmarried couples, unregistered partners, step children, step brothers and sisters will not inherit anything at all.

These situations can be complex and there is a risk of mistakes being made in identifying the beneficiaries and the people entitled to take the place of executors as there is no will (the personal representatives). These personal representatives can be held personally liable for any financial loss resulting from a breach of their duty, even if any mistakes made were genuine errors.

It is therefore necessary to take specialist advice if there is no will.

Once the relevant family is identified the estate will then pass down the family tree as follows:

If married at time of death

1. If there is issue (i.e. children or direct descendants) the spouse takes:
   • all personal belongings absolutely, and
   • £322,000 known as “the statutory legacy” (see below), and
   • half the balance of the remaining estate absolutely, and the other half passes absolutely to the children in equal shares
2. If the deceased leaves no issue, the spouse takes the whole estate absolutely

If unmarried (or divorced or widowed)

The estate goes in the following order to the deceased’s

1. Issue
2. Parents
3. Brothers and sisters of the whole blood and if they have predeceased then to their issue
4. Brothers and sisters of the half blood and if they have predeceased then to their issue
5. Grandparents
6. Uncles and aunts of the whole blood and if they have predeceased then to their issue
7. Uncles and aunts of the half blood and if they have predeceased then to their issue
8. The Crown as bona vacantia

The “Statutory Legacy”

This has been increased over the years to £322,000 for deaths on or after 26th July 2023.

The executors can transfer any part of the estate towards satisfaction of any inheritance. This means that the surviving spouse can decide to take any asset including, for instance, the matrimonial home (if it forms part of the deceased’s estate). Specialist advice from GA Solicitors is needed if this is contemplated.

It should be noted that if the matrimonial home was held by the husband and wife as “joint tenants” then the survivor would become sole owner of the property automatically by way of survivorship and the property will never form part of the estate, so the spouse will receive the matrimonial home in addition to their entitlement under the rules.

The rules in relation to intestacy are complex and GA Solicitors’ specialists can advise you as to how this might apply if there is no will. 

Get in touch today for a free, no obligation discussion. Call 01752 203500, email enquiries@GAsolicitors.com  or fill in our contact form.