I have a spouse or civil partner and family. What happens if I die without a will (Intestate)?

The rules on Intestacy would apply.


What is the Statutory Legacy?

The Statutory Legacy is the fixed net sum to which the deceased’s surviving spouse or civil partner is entitled from the estate, when the deceased died intestate (without a will), leaving other close surviving family members. Once the Statutory Legacy is applied the balance of the deceased estate is divided in accordance with the intestacy rules.

What are the rules?

When a person dies without leaving a valid will, their property (the 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.

Only married or civil partners and some other close relatives can inherit under the rules of intestacy.

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.

Partners who separated informally can still inherit under the rules of intestacy. Cohabiting partners (sometimes wrongly called ‘common-law’ partners) who were neither married nor in a civil partnership can’t inherit under the rules of intestacy.

If there are surviving children, grandchildren or great grandchildren of the person who died and the estate is valued at more than £270,000 (£250,000 if the deceased died before 6th February 2020), the 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.

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 and
  • the whole of the estate with interest from the date of death.

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.

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.

Close relatives

Children

Children of the intestate person will inherit if there is no surviving married or civil partner. If there is a surviving partner, they will inherit only if the estate is worth more than £270,000.

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 (£250,000 before the 6th February 2020). 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.

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. But 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 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 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

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

However, 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 passes to the Crown. This is 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 to them.

If you are not a surviving relative, but you believe you have a good reason to apply for a grant, you will need legal advice.

Why it’s best not to rely on the intestacy rules and why you should make a will.

As you can see from the examples above, the intestacy provisions do provide for family but this may not be in the way you intend and may result in inheritance tax being paid, claims against the estate and disgruntled beneficiaries. 

In addition to placing additional stress on your loved ones at a time of grief, relying on the intestacy rules may mean that those who you wish to benefit on your death will not do so in the way you intend (for example, unmarried couples or friends) and it may even mean that those who you may not necessarily want to benefit will do so (for example, estranged siblings or parents). 

The best way of beating the intestacy provisions is by making a will and choosing who you want to benefit and how.


For further information on Wills and Probate or to make a will why not contact one of Alexander JLO’s expert lawyers and see what we can do for you?

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