will and probate services

Legal Love Letters: who inherits if there is no will?

Who can inherit if there is no valid will?

The rules of intestacy:

When a person dies without leaving a valid will, their property (their estate) must be shared out according to certain rules. These are called the rules of intestacy.

A person who dies without leaving a will is called an intestate person.

See also: unclaimed estates list here

Only married or civil partners and some other close relatives can inherit under the rules of intestacy i.e.where there is no valid will.

If someone makes a will but it is not legally valid, the rules of intestacy decide how the estate will be shared out, not the wishes expressed in the will.

Married partners and civil partners:

Married partners or civil partners inherit under the rules of intestacy only if they are actually married or in a civil partnership at the time of death.

So if you are divorced or if your civil partnership has been legally ended, you can’t inherit under the rules of intestacy.

Important:

Partners who separated but did not get divorced can still inherit under the rules of intestacy. You must write a will if they are not to inherit anything from you.

Cohabiting partners (sometimes wrongly called 'common-law' partners) who were not married or in a civil partnership can not inherit under the rules of intestacy.

If the person who died has surviving children, grandchildren or great grandchildren and the estate is valued at more than £270,000, the spouse or civil partner will inherit:

all the personal property and belongings of the person who has died, and
the first £270,000 of the estate, and
half of the remaining estate.

For example:

Annie was in a civil partnership with Joe and they have a daughter called Lucy.
Annie dies without leaving a will.
Her estate (everything in her sole name) is worth £470,000.
Joe inherits the first £270,000 and the estate that is left after that is worth £200,000.
Joe can have half of this - £100,000.
Their daughter Lucy receives the remaining £100,000.

If there are no surviving children, grandchildren or great-grandchildren, the spouse or civil partner will inherit:

all the personal property and belongings of the person who has died and
the whole of the estate with interest from the date of death.

Co-owned property:

There are two different ways of owning a home with another person:

jointly owned
tenants-in-common

Do remember: Your estate consists only of assets held in your sole name.

If the partners were joint owners at the time of the death, when the first partner dies, the surviving partner will automatically inherit the other partner's share of the property.

However, if the partners are tenants in common, the surviving partner does not automatically inherit the other person's share.

Do you know how your property is owned? Most people aren't sure:

If you own your property with another person it is really important that you know the difference between joint ownership and tenants-in-common as it has a huge impact when it comes to writing a will.

Read: the difference between joint ownership and tenants-in-common

Couples with joint bank or building society accounts:

If one dies, the other partner will automatically inherit all the money in the account. It does not form part of the estate.

Property and money that the surviving partner inherits in this way does not count as part of the estate of the person who has died when it is being valued for the intestacy rules.

Key differences | Example:

John and Marie are married and bought their bungalow as joint owners.

They have a child called George.
John dies without a will.
He leaves behind a jointly-owned bungalow worth £300,000, and also £70,000 in shares which are in his own name.
The bungalow goes automatically to Marie. This leaves an estate of £70,000 which also goes to Marie, as it is worth less than £270,000. Their son George inherits nothing.

If John had owned the bungalow in his name alone

his estate would have been worth £370,000.
It would be shared out according to the rules of intestacy, that is, Marie would get the first £270,000.
This leaves an estate of £100,000.
Marie would get £50,000 and George would get the remaining £50,000.

Close relatives - children:

Children of the intestate person will inherit if there is no surviving married or civil partner. If there is a surviving spouse or civil partner, the children will inherit only if the estate is worth more than a certain amount.

Children - if there is no surviving married or civil partner:

If there is no surviving partner, the children of a person who has died without leaving a will inherit the whole estate. This applies however much the estate is worth. If there are two or more children, the estate will be divided equally between them.

Children - if there is a surviving partner:

If there is a surviving partner, a child only inherits from the estate if the estate is valued at over £270,000. If there are two or more children, the children will inherit in equal shares:

one half of the value of the estate above £270,000.

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.

Example:

Rob and Sue were married and have two children, Jake and Emily.
Rob and Sue get divorced.
Rob then has a child, Luke, with his new partner Jackie.
Rob and Jackie do not marry.
Rob dies.
Sue does not inherit under the intestacy rules because she is divorced from Rob and neither does Jackie because she was not married to Rob.
Jake, Emily and Luke inherit all of Rob's estate in equal shares.

A child whose parents are not married or have not registered a civil partnership can inherit from the estate of a parent who dies intestate:

These children can also inherit from grandparents or great-grandparents who have died intestate.

Adopted children (including step-children who have been adopted by their step-parent) have rights to inherit under the rules of intestacy. Otherwise you have to 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 would 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 circumstances, the grandchildren and great grandchildren will inherit equal shares of the share to which their parent or grandparent would have been entitled.

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 number of things:

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 a right to inherit if the person who died intestate had no surviving married partner or civil partner, children, grandchildren, great grand-children, parents, brothers, sisters, nephews or nieces.

The order of priority amongst other relatives is as follows:-

grandparents
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
carers

Even if you can't inherit under the rules of intestacy, you may be able to apply to 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 then passes to the Crown. This is known as bona vacantia. The Treasury solicitor is then responsible for dealing with the administration of the estate. The Crown can make grants from the estate but doesn't have to agree to them.

If you aren't a surviving relative but you think you have good reason to apply for a grant, you'll need to take legal advice.

Re-arranging the way the estate is shared out.

It is possible to re-arrange 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 variation.

All the people who would inherit under the rules of intestacy must agree.

Only if they agree, the property can be shared out in a different way so that people who don't inherit under the intestacy rules can still receive some of the estate. Alternatively, they could agree that the amount that people get is different to the amount they would get under the rules of intestacy.

If you think that the way the estate is shared out should be rearranged, you'll need to take legal advice.

Applying for financial help

You may be able to apply to the court for reasonable financial help from the estate of the person who has died intestate. For example, if you were living with the person who has died but you were not married to them, you would not inherit under the rules of intestacy.

However, you could apply to court for financial help.

You must have lived with them for at least two years immediately before their death. Another example is if you were always treated by the person who died as a child of the family. You would not inherit under the rules of intestacy but you could apply to the court for financial help.

You must make the application within a certain time limit although in some circumstances this can be extended.

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'll need to take legal advice.