Who can inherit if there is no will? The rules of intestacy.
The guidance is applicable to England. If a person dies without leaving a valid will, according to the laws, their property (the estate) must be shared out. These are also Intestacy laws. An individual who dies without leaving a will is called an intestate.
Under the rules of intestacy only married or civil partners and some other close relatives can inherit.
If someone makes a will but it’s not legally binding, the intestacy laws determine whether the estate will be spread out, not the desires stated in the will.
Married partners and civil partners
Under the laws of intestacy, married spouses or civil spouses inherit only when they are in fact married or in civil union at the time of death. And if you’re divorced, or if your civil union has been legally dissolved, you can’t inherit under the intestacy law.
Partners who break informally will still inherit under intestacy law. Within the laws of intestacy, cohabiting spouses (sometimes mistakenly named’ common-law’ spouses) who were neither married nor in a civil union cannot inherit.
If the person who died has living children, grandchildren or great grandchildren and the estate is valued at more than £ 250,000, the spouse will inherit the following:
- all the personal property and belongings of the person who has died
- the first £250,000 of the estate
- half of the remaining estate.
For example: Susan was in a civil partnership with Mark and they adopted a daughter called Mia. Susan died without leaving a will. Her estate is worth £450,000. After Mark inherits his share of £250,000, the estate that is left is worth £200,000. Mark can have half of this – £100,000.
If there are no surviving children, grandchildren or great-grandchildren, the partner will inherit:
- 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
Couples can own their own homes together. There are two distinct ways to own a house together. There are mutually beneficial shared tenancies and tenancies in common.
If the partners were successful joint tenants at the time of death, the surviving partner would automatically inherit the share of the property from the other partner when the first partner dies. Nevertheless, if the partners are common tenants the surviving partner will not inherit the share of the other party automatically.
Spouses may also have joint bank or building society accounts for the society. When one dies then the other partner will inherit the whole money automatically.
Property and assets inherited by the surviving spouse does not count as part of the estate of the person who died when appraised under the laws of intestacy.
Example: Tom and Heather are married and own their flat jointly as beneficial joint tenants. They have a child called Selma. Tom dies intestate leaving the jointly owned flat worth £300,000, and £50,000 in shares in his own name. The flat goes automatically to Heather. This leaves an estate of £50,000 which also goes to Heather, as it is worth less than £250,000. Selma inherits nothing.
If Tom had owned the flat in his name alone, his estate would have been worth £350,000. It would be shared out according to the rules of intestacy, that is, Heather would get the first £250,000. This leaves an estate of £100,000. Heather would get £50,000 and Selma would get the remaining £50,000.
Intestate person’s children will inherit if no living marriage or civil partner exists. When a surviving partner remains, they will inherit only if the property is worth more than a certain amount.
Children – if there is no surviving married or civil partner
Only if there is no surviving partner, the whole estate is inherited by the children of the individual who died without leaving a will. However much the estate is worth this applies. If two or more children are present, the estate shall be divided equally among them.
Children – if there is a surviving partner
If a living parent is present, a child inherits from the estate only if the estate is valued at over £ 250,000. If two or more children are present, the children shall inherit in equal shares:
- one half of the value of the estate above £250,000.
All the children of the parent who has died intestate inherit equally from the estate. This also applies where a parent has children from different relationships.
For example: Alan and Grace were married and have two children, Tim and Annie. Alan and Grace get divorced. Alan then has a child, Mark, with his new partner Beata. Alan and Beata do not marry. Alan dies. Grace does not inherit under the intestacy rules because she is divorced from Alan and neither does Beata because she has not married Alan. Tim, Annie and Mark inherit all of Alan’s estate in equal shares.
A child whose parents are not married or whose civil union has not been registered will inherit from the estate of a parent who dies intestate. Such children will also inherit from intestate-deceased grandparents or grandparents.
Adopted children (including stepchildren adopted by their stepparent) have inheritance rights under the intestacy law. But otherwise you must be a biological child to inherit.
Children do not receive their inheritance immediately. They receive it when they:
- reach the age of 18, or
- marry or form a civil partnership under this age.
Until then, trustees manage the inheritance on their behalf.
Grandchildren and great grandchildren
A grandchild or great grandchild cannot inherit from the estate of an intestate person unless either:
- 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
In these cases, grandchildren and great grandchildren would inherit equal shares of the share that should have been entitled to from their parent or grandparent.
Example: Sam has two sons, Peter and Andy. Andy has one daughter, Rachel. Andy dies when Rachel is two years old. Sam dies intestate when she is 20. Rachel inherits Andy’s share of Sam’s estate.
Other close relatives
Parents, brothers and sisters and nieces and nephews of the intestate person may inherit under the rules of intestacy. This will depend on a few 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.
If the person who died intestate had no living marriage spouse or civil spouse, children, grandchildren, great grandchildren, parents, brothers, sisters, nephews or nieces, other relatives would have the right to inherit it. Among other relatives the order of priority 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 cannot inherit?
The following people have no right to inherit where someone dies without leaving a will:
- unmarried partners (sometimes wrongly called ‘common-law’ partners)
- lesbian or gay partners not in a civil partnership
- relations by marriage
- close friends
However, even though you cannot inherit under the intestacy law, you might be entitled to appeal from the estate to court for financial provision.
If there are no surviving relatives
Unless there are no living heirs who are eligible to inherit under the intestacy law, the estate passes to the Crown. This is called bona vacantia. Afterwards the Treasury Solicitor is responsible for dealing with the properties. The Crown may make grants from the estate but must not comply with them.
If you’re not a living relative but feel that you have a legitimate reason to apply for a grant, you’ll need legal advice.
For more information about bona vacantia go to the GOV.UK
Rearranging the way the estate is shared out
If someone dies without having a will, it is possible to rearrange the way property is paid out, if this is done within two years of death. It is called performing a family agreement or variant deed. All those individuals who will inherit under intestacy laws must consent.
Once they consent, the property can be divided out differently so that those who don’t inherit under the laws of intestacy can still get some of the estate. Perhaps they could accept that the amount people get is different from the amount they’d get under intestacy law.
If you think you should rearrange the way the estate is worked out, you’ll need legal advice. You could get legal support.
Applying for financial help
For reasonable financial assistance from the estate of the person who died intestate, you might be required to apply to court. For instance, if you were living with the person who died but you were not married to them, under the rules of intestacy you would not inherit it. You may apply to the court for financial assistance, though. You must have lived with them for at least two years right before they died. Another example is if you’ve always been viewed as a family child by the person who died. Under the laws of intestacy, you wouldn’t inherit, but you may apply to the court for financial assistance.
You must apply the request within a certain time period although this can be extended in certain circumstances.
The court may order:
- regular payments from the estate
- a lump sum payment from the estate
- property to be transferred from the estate.
If you want to apply to the court for financial help, you will need legal advice.
Rejecting your inheritance
If you reject your inheritance, which is known as disclaiming, there are special rules on who will inherit it. You should seek advice in this regard.
The GOV.UK website includes more information about what happens if someone dies without leaving a will. Go to www.gov.uk.