When someone dies without a will
When someone dies and they haven’t written a valid will, their belongings must be shared according to certain rules. What constitutes a ‘valid’ will, however, is up for some debate. A Canadian farmer once scratched his will onto the tractor that was crushing him to death, and this seemed to be considered valid.
If someone has created a will that isn’t considered legally valid then the rules of intestacy will decide how the estate is shared out. You can see what constitutes a valid will, here.
Marriage and family
Under the rules of intestacy, only married partners or civil partners can inherit. This means that if you’re divorced or a civil partnership has legally ended, then you do not qualify to inherit under the rules of intestacy.
Informally separated partners can still inherit, though. Cohabiting partners (often mistakenly called ‘common-law’ partners) who haven’t married or joined in a civil partnership cannot.
If the person who died has surviving children, grandchildren or great-grandchildren and the estate is valued at more the £250,000, the partner can then inherit:
- all the personal property and belonging to the person who has died
- the first £250,000 of the estate
- half of the remaining estate
If there are no surviving children, then the partner inherits:
- all the personal property and belongings of the person who has died
- the whole of the estate with interest from the date of death.
Jointly owned property can have an effect on intestacy as well. There are two different ways of jointly owning a home – these are ‘beneficial joint tenancies’ and ‘tenancies in common.’
If the partners were ‘beneficial joint tenants’ at the time of death when the first partner dies, the surviving partner will automatically inherit the other partners share of the property. However, if the partners are ‘tenants in common’ the surviving partner won’t automatically get the deceased share.
Couples can also have joint bank accounts. If one of them dies, then the other partner will automatically inherit all of their money.
Property and money that the surviving partner inherits don’t count towards the estate of the person who has died when it’s to be valued in accordance with the intestacy rules.
For example, Johnny and Mary are married and they own their flat jointly as beneficial joint tenants. They have a child called Robert. Johnny dies without having prepared a will, the flat is worth £300,000 and he has £50,000 worth of shares in his name. The flat automatically goes to Mary, this leaves the estate value of £50,000. Which since it’s less than £250,000 also goes to Mary. Robert gets nothing.
If Johnny owned the flat is his name, his estate would be worth £350,000. This would then be shared out according to the rules of intestacy. This means that Mary would get the first £250,000. Which leaves an estate of £100,000. Which is then split 50-50 with Mary and Robert. £50,000 each. Nice.
Children of an intestate person will inherit if there is no surviving married or civil partner. If there is a surviving partner then they will inherit only if the estate is worth more than a certain amount.
If there is no surviving married or civil partner
If there is no surviving partner, the children of an intestate person will inherit the whole estate. This applies however much the state is worth. The estate is also divided equally depending on how many children there are.
If there is a surviving partner
If there is a surviving partner then the child will only inherit:
- If the estate is valued at over £250,000
- If there are two or more children then they will inherit equal shares
- If one half of the value of the estate is above £250,000
The children of a parent who dies intestate will inherit equally from the estate. This also applies if a parent has children from other relationships.
Adopted children (including adopted step-children) also have the right to inherit under the rules of testacy. But apart from this, you must be a biological child in order to inherit.
Children can not receive inheritance immediately. They must:
- be 18 or marry or form a civil partnership under the age of 18
- until then their money is managed on their behalf by appointed trustees.
For example, Hamish has two sons, Reggie and Ernest. Ernest has a daughter, Julia. Ernest dies when Julia is two years old. Hamish dies intestate when she is 20, Julia inherits Ernests share of Hamish’s estate.
Other close relatives
Parents, brothers, sisters, nieces and nephews of an intestate person an also inherit under the rules of intestacy. But, this depends on a number of 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
- the amount of the estate.
Other relatives may have the right to inherit if the person who died intestate has no surviving married partner, civil partner, children, grandchildren, great-grandchildren, parents, brothers, sisters, nephews or nieces. The pecking order is as follows:
- 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.
Who can’t inherit?
The following people currently have no right to inherit where someone dies without leaving a will.
- Unmarried partners (sometimes mistakenly called ‘common-law’ partners) and lesbian or gay partners not in a civil partnership
- relations by marriage
- close friends
- However, even if you can’t inherit under the rule of intestacy, you may be able to apply to the court for financial provision from the estate.
If there are no surviving relatives
If there are no surviving relatives who can inherit under the rules of intestacy, the estate passes to the crown. This is also known as ‘bona vacantia’. The treasury solicitor is then responsible for dealing with the estate. The crown can make grants from the estate but does not have to agree with them.
If you are not a surviving relative but feel you have good reason to apply for a grant then you must seek legal advice.
More advice on bona vacantia can be found here
Rearranging the way the estate is shared out
It’s possible to rearrange the way property is shared out when someone dies without leaving a will, provided this is done within two years of the death. This is called ‘making a deed of family arrangement or variation’. All the people who would inherit under the rules of intestacy must agree.
If all members of the part agree then the property can be shared out in a different way so that people you wouldn’t normally inherit under the intestacy rules can still get some of the estate.
If you think the way the estate is shared out should be rearranged, you will need legal advice.
Rejecting your inheritance
For one reason or another, should you wish to refuse your inheritance, it’s known as disclaiming it. You will need to seek legal advice.
The rules surrounding intestacy are varied, detailed and slightly confusing. So it’s always worth remembering that this can be avoided by preparing a will. If you want to go one further, you can start sharing your estate out before you have passed away too. Either way, someone is going to have to sort all of this out, so why not take charge, and get your own death in order.