The Rules of Intestacy

When a person dies, everything they own is either inherited under the ‘rules of intestacy’ or inherited by the wishes of the person who has passed away. This will be decided on by whether the person who has passed away left a valid Will or not.  

It’s easy to assume that our property and possessions will automatically go to loved ones when we die, however, this is sadly not always the case.

This guide will help you understand the rules of intestacy and inheritance law.

What happens when someone passes away?

When a person passes away, their property, finances, and possessions, known as the ‘Estate’, are inherited. This is usually by a family member; however, it can be anyone you wish, providing you make a valid Will. If there is no valid Will, the estate will be inherited by the next of kin. This is known as the “Rules of Intestacy” or the Intestacy Rules.

What happens if there is a Will?

When someone dies, if they have left a valid Will, this sets out how their estate should be divided and who gets what. An executor will be responsible for administrating the Will and a ‘grant of probate’ needs to be applied for.

Following this, the executor is responsible for administering the estate and the wishes of the deceased will be carried out and what those outlined in the Will will inherit.

What happens if there is no Will?

If there is no valid Will in place the next of kin inherits under the rules of intestacy. The rules place your relatives in an order of priority as to who can inherit, as follows:

– Spouse or civil partner

– Children

– Grandchildren/great grandchildren

– Parents

– Siblings

– Grandparents

– Aunts and uncles

– Half aunts and half uncles

The rules do not reflect many modern-day families. Only married or civil partners and some other close relatives can inherit under the rules of intestacy. The following are not covered under the rules of intestacy:

– Stepchildren

– Unmarried partners / cohabiting partners / common-law partners

– Couples not in a civil partnership

– Relations by marriage

– Close friends

– Carers

However, even if you can’t inherit under the rules of intestacy, you might be able to apply to court for financial provision from the estate.

Also, married partners who have separated informally can still inherit under the rules of intestacy. A person wishes or intentions are not considered under the intestacy rules, therefore a Will is needed to override the rules of intestacy.

How can a Will help?

A carefully prepared Will will take priority over the rules of intestacy, meaning a person can leave various possessions, property and/or finances to specific people.

A Will is particularly important if you:

– Are not married

– Are separated from a spouse

– Have children

– You are estranged from immediate family

– Own property, have savings and/or valuables

Jointly Owned Property

Couples may jointly own their home. 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 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.

Joint Bank Accounts

Couples may also have joint bank or building society accounts. If one dies, the other partner will automatically inherit the whole of the money.

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

What is Partial Intestacy?

Partial intestacy is when the terms of the won’t actually deal with the whole of estate. This can happen if the will hasn’t been properly drafted.

With partial intestacy, some assets are dealt with under the will, but other assets are dealt with in accordance with the rules of intestacy. 

How We Can Help

Our Wills, Trusts and Probate specialists can help you plan for your family’s future, advise on the best way to protect your assets and possessions after you have gone. We can help you with:

– Drafting or amending a valid Will

– Advice on leaving property, possessions, and finances

– Probate and estate administration

– Inheritance disputes

– Inheritance tax

Lindsey Rawson, head of our Wills, Trusts & Probate department, can help you create an estate plan, help draft a Will, support you to deal with a persons estate when they pass away and get all your affairs in order ready for retirement. She specialises in Wills, trusts, powers of attorney, probate and inheritance tax planning.

Lindsey acts for clients in South Yorkshire and beyond and can be contacted by calling 0114 249 66 66 or emailing enquiries@howellsllp.com