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Dying intestate

Dying intestate is the term used when a person dies without making a will. In these instances there are rules which will be used to dispose of that person’s property. Even if the deceased had made clear in their lifetime who they would wish to benefit from their assets, if they did not leave a valid will, there is no guarantee whatsoever that these people will receive anything.

There are two types of intestacy

  1. Total intestacy

This is the term used for people who have never made a will, who have cancelled their will and did not make a new one or those who have made a will which is invalid.

  1. Partial intestacy

This is where the deceased has made a valid will but this has failed to dispose of all the assets. This can be remedied by the will having a valid residuary gift which makes sure that if property is not specifically mentioned, it is passed to chosen beneficiaries nominated by the testator, the person who made the will.

Who stands to benefit from intestacy?

The basic rule is that the closer the relative, the greater their chance of being a beneficiary. The spouse has priority over other categories of beneficiaries, though they might have to share the residuary estate with other beneficiaries.

If there is no surviving spouse then the estate goes to, in order:

  • Any children, if none then...
  • Their parents, if none then...
  • Their brothers and sisters
  • Half brothers and sisters
  • Grandparents equally if more than one.
  • Uncles and aunts
  • Half uncles and aunts
  • The Crown

If both a spouse/civil partner and children survive the intestate, then the estate is distributed in the following way.

The spouse/civil partner receive all the personal assets, also called personal chattels and also receive a specific gift of £250,000 free of tax and cost plus interest at a prescribed rate from the date of death until payment. If the estate is worth less than £250,000 then the amount, whatever it is, goes to the spouse in its entirety and the children do not receive anything.

If there is more than £250,000 then the first £250,000 goes to the spouse/civil partner with the remaining amount being held in two equal funds. One being held on trust for the spouse/civil partner with the other going to the children also to be held in a trust. These trusts are termed statutory legacies.

The spouse/civil partner benefitting is conditional on them surviving the intestate for 28 days. If they die within this time then the estate is divided as if they have not survived the intestate.

Matrimonial home

If there is a matrimonial home as part of the estate, the surviving spouse/civil partner can retain the home in full or partial satisfaction of their interest in the estate.

When an estate does pass to the Crown, there is a provision to provide for dependants of the intestate or for others who the intestate might reasonably have been expected to make provision for.