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Intestacy under English Law refers to the situation where a person dies without leaving a valid will. In such cases, their estate (property, money, possessions) is distributed according to a set of legal rules called the intestacy rules, rather than according to the wishes of the deceased.
When a person dies without a valid will, his or her estate is handled by an administrator appointed by the Probate Registry. The estate (the deceased's assets less any debts) is distributed according to a strict legal order set out in the Administration of Estates Act 1925 and Inheritance and Trustees' Powers Act 2014.
The rules do not take into account the deceased's relationships, wishes, or informal promises which could mean that the person you wish to inherit your assets may not be who you intended. This could leave issues for your loved ones and make your estate susceptible to a claim from a disappointed beneficiary, especially if you live with your partner and you are not married or in a civil partnership.
The intestacy rules provide the following relatives take priority where there is no will or valid will :-
Married/in a civil partnership and do not have children - In England and Wales, if you are married/ in a civil partnership without children and died intestate, everything you solely own will pass to your spouse/civil partner absolutely.
Married/in a civil partnership and have children - here the first £270,000 and all personal chattels will pass to your spouse/civil partner, the remaining estate will be split into two equal shares, one share to your spouse/civil partner and the remaining share will be split equally between your children. It must be noted that any joint assets would automatically pass to the surviving asset holder and would not be accounted for in the above calculation.
Not married/in a civil partnership and have children - if you have children and are not married, everything will pass to them equally. If any of your children were to have predeceased you, their share would pass equally between their children (grandchildren).
Not married/in a civil partnership and do not have children - your assets will be split equally between your parents.
Not married/in a civil partnership, do not have children or parents who are alive - who inherits depends on what relatives survive you.
Where there is no will the estate administration process differs in several key ways from the standard probate process. While the overall steps are similar, intestacy creates additional complexity, paperwork and restrictions. The inheritance tax process remains broadly the same as with probate, requiring the same forms and payment procedures, though the lack of tax planning in a will may result in higher tax liability.
Different Legal Authority - "Letters of Administration" instead of "Grant of Probate"
More Restricted Powers - Administrators have less discretion than executors
Additional Documentation - More forms and evidence of relationship required
Longer Timeframes - Typically takes 3-6 months longer than with a will
Stricter Distribution Rules - No flexibility to honour the deceased's verbal wishes
Increased Costs - Legal assistance often necessary due to added complexity
The right to apply for "Letters of Administration" follows a strict order of priority:
Surviving spouse or civil partner
Children of the deceased (including legally adopted, but not step-children)
Parents of the deceased
Siblings of the deceased
Grandparents of the deceased
Aunts and uncles of the deceased
The person who takes on this role is called the "administrator" rather than an "executor" and must follow the intestacy rules precisely.
Professional legal support is often valuable when administering an intestate estate to ensure all legal obligations are met and to help navigate the additional complexities that arise in the absence of a will.
Ellie Jaggard is a solicitor who deals Wills, Probate and Lasting Power of Attorneys and can be contacted directly by email by clicking the 'contact us' should you require any further information. Please click here to read more about our Wills, Trusts and Probate services.
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