FREE CHAPTER from ‘A Practical Guide to Administering Estates and Obtaining Probate in England & Wales’ by Stephanie Christie-Carmichael

CHAPTER TWO – INTESTATE ESTATES

An intestate estate occurs when a person dies without leaving a valid Will.

According to research, around 6 out of 10 adults in the UK don’t have a Will¹. Business development opportunities on the Will writing front aside, this means that more likely than not, you are going to have to administer an intestate estate at some point in your career.

Who will inherit when a person dies intestate in England and Wales will depend on the date of death.

Deaths from 1 October 2014 onwards

Where the deceased died on or after 1 October 2014, the following order of who can inherit will apply²:

1. Where the deceased was married/in a civil partnership, but has no surviving children (or remoter issue of a predeceasing child), then the estate passes in full on trust to the surviving spouse or civil partner;

2. Where the deceased leaves children (or representation by remoter descendants in the case of a predeceasing child) and also leaves a surviving spouse/civil partner, the distribution of the estate is as follows:-

   1. To the surviving spouse or civil partner:

      1. All personal chattels of the deceased³ without monetary limit;

      2. A fixed net sum (currently £270,000⁴) free of death duties and costs together with simple interest on it from the date of death until the legacy is satisfied with interest thereon at the Bank of England rate that had effect at the end of the day on which the deceased died;

      3. One half share of the residue of the estate – that is to say everything that is left over after settlement of all debts, funeral expenses, taxes, legacies and administration expenses – on trust

   2. To the children (or remoter descendants of predeceasing children)

      1. one half share of the residue of the estate on statutory trust;

3. Where there are children but no spouse/civil partner of the deceased then the entire estate passes equally between the children of the deceased (with representation by issue in the case of a predeceasing child);

4. In the event that the deceased was not survived by a spouse, children or remoter issue, then if one or both of the deceased’s parents are still alive, the entire estate passes equally between the parents or to the survivor of them as the case may be;

5. In the event that the deceased was not survived by a spouse, children or remoter issue, or parents, then the entire estate passes equally between their siblings (with representation by issue in the case of a predeceasing sibling). For these purposes, siblings are defined as siblings of the full blood (in simple terms, where the deceased and the siblings share the same Mother and Father);

6. In the event that the deceased was not survived by a spouse, children or remoter issue, parents or full blood siblings, then the estate passes equally between the half siblings with representation by issue in the case of a predeceasing half sibling (A half sibling for these purposes is a sibling who shares a single parent with the deceased);

7. In the event that the deceased was not survived by a spouse, children or remoter issue, parents or full or half-blood siblings, the entire estate passes equally between and to the survivor of the deceased’s grandparents. This provision includes both maternal and paternal grandparents ie if the deceased was survived by both sets of grandparents, each grandparent would receive a quarter share of the estate;

8. In the event that the deceased was not survived by a spouse, children or remoter issue, parents, full or half-blood siblings or grandparents, the entire estate passes equally between aunts and uncles of the full blood of the deceased (both maternal and paternal) (with representation by issue in the event of a predeceasing aunt or uncle);

9. In the event that the deceased was not survived by a spouse, children or remoter issue, parents, full or half-blood siblings, grandparents and aunts and uncles of the full blood, then the estate passes equally between the half aunts and uncles with representation by issue in the case of a predeceasing half aunt or uncle;

10. In the event that the deceased is survived by none of the foregoing relatives, the estate passes to the Crown or to the Duchy of Lancaster or to the Duke of Cornwall for the time being, as the case may be, as bona vacantia⁵.

For these purposes, the family history only goes back as far as grandparents on both maternal and paternal sides but can descend from there through as many generations as is required to find a living heir.

Deaths prior to 1 October 2014

For deaths which occurred before 1^st October 2014, a different set of rules applied in connection with the provision for a surviving spouse/civil partner and children as follows:

1. Where the deceased was married/in a civil partnership, but has no surviving children (or remoter issue of a predeceasing child), then the estate passes in full to the surviving spouse or civil partner;

2. Where the deceased left children (with representation by issue in the case of predeceasing children) but no surviving spouse/civil partner, then the estate passes in full to the children (or their issue as the case may be) equally between and to the survivor of them;

3. Where the deceased left children (or representation by remoter descendants in the case of a predeceasing child) and also leaves a surviving spouse/civil partner, the distribution of the estate was as follows:-

   1. To the surviving spouse or civil partner:

      1. All personal chattels of the deceased⁶ without monetary limit;

      2. A statutory gift⁷ plus interest running from the date of death to the date the gift is satisfied;

      3. One half share of the residue of the estate – that is to say everything that is left over after settlement of all debts, funeral expenses, taxes, legacies and administration expenses – on life interest trust with the option to elect to convert the trust to a capital sum (particularly useful in small estates)⁸;

   2. To the children (or remoter descendants of predeceasing children)

      1. one half share of the residue of the estate on statutory trust equally among them if more than one and contingent upon the earlier of them attaining the age of 18 years old or marrying (including entering a civil partnership); and

      2. the remainder of the spousal life interest trust on the spouse’s death.

4. Where the deceased was survived by a spouse/civil partner, parents and siblings of the full blood (with representation by issue of predeceasing siblings) but had no children or remoter descendants the distribution of the estate was as follows:-

   1. To the surviving spouse or civil partner:

      1. All personal chattels of the deceased⁹ without monetary limit;

      2. A statutory gift¹⁰ plus interest running from the date of death to the date the gift is satisfied;

      3. One half share of the residue of the estate absolutely.

   2. Where the deceased is survived by parents:

      1. The parents will take the remainder of the residue equally between them or in full to the survivor of them absolutely;

   3. Where the deceased is survived by siblings (with representation by issue of predeceasing siblings) but not by parents:

      1. The siblings (with representation by issue) will take the remainder of the residue equally between them or in full to the survivor of them absolutely;

5. Where there is no spouse/civil partner and no children (including representation by issue) then the order of succession is as follows:

6. To the parents of the deceased equally among them and to the survivor;

7. To siblings of the full blood (with representation by issue) equally among them and to the survivor or survivors of them;

8. To siblings of the half-blood (with representation by issue) equally among them and to the survivor or survivors of them;

9. To grandparents equally among them and to the survivor or survivors of them;

10. To aunts and uncles of the whole blood (with representation by issue) equally among them and to the survivor or survivors of them;

11. To aunts and uncles of the half-blood (with representation by issue) equally among them and to the survivor or survivors of them;

12. In the event that the deceased is survived by none of the foregoing relatives, the estate passes to the Crown or to the Duchy of Lancaster or to the Duke of Cornwall for the time being, as the case may be, as bona vacantia.

Children

It should be noted that there is no distinction in terms of succession rules following the death of a parent as to whether the child is legitimate (born to parents who are married) or illegitimate (born to parents who are not married). Likewise, once a child is adopted, the line of succession switches from that of their biological parents to that of their adopted parents and they are treated as if they were a biological child of their adoptive parents.

The only distinction which applies relates to succession to an illegitimate child’s estate. Where the father is not named on the birth certificate, the father and all of the father’s relatives are deemed to have predeceased the child¹¹.

Where IVF is involved, the woman carrying the child is deemed to be the mother of the child for succession purposes notwithstanding that she may have no genetic connection to the child¹². Likewise, the husband of the woman carrying the child is deemed to be the father for succession purposes (again notwithstanding that he may not have a biological connection to the child). There is however an exception to this, namely in circumstances where the husband did not consent to the implantation of the embryo¹³. Succession away from the carrier and her spouse/civil partner will only happen once the baby is formally adopted by its “new” parents (for example, where a surrogate carrier is used).

Cohabiting Partners

You will notice the complete absence of any mention of cohabiting partners on intestacy. This is because there are no automatic rights of succession for cohabiting partners. A claim can however be made for provision for a surviving cohabitant under the Inheritance (Provision for Family and Dependants) Act 1975 (more of which later).

Spouse/Civil Partners dying in quick succession

It is important to note that where:

1. The death occurs after 1 January 1996; and

2. The surviving spouse/civil partner of the deceased survives the deceased but dies within 28 days of the deceased;

Then the now deceased surviving spouse/civil partner is treated as having predeceased the deceased and the estate of the now deceased surviving spouse/civil partner not be entitled to receive anything from the estate of the first spouse/civil partner to die¹⁴.

Where the death occurred prior to 1 January 1996, the estate is dealt with as if there had never been a spouse or civil partner.

Partial Intestacies

This is a situation which arises in a testate estate but a defect occurs as follows:

1. The deceased has failed to dispose of his full estate (commonly happens in DIY Wills where the testator thinks they have to narrate who gets each specific asset and they either forget about an asset or fail to review their Will, change assets (e.g. purchases a new house) and forget to update their Will; or

2. Where there is no destination over in the situation where a named beneficiary predeceases or fails to comply with contingent conditions of inheritance (e.g. dying prior to attaining a certain age);

In these cases, there is a hybrid model of succession deployed whereby the Will covers what it can including Executor appointments and the rest of the estate not otherwise dealt with through the Will is dealt with according to the intestacy rules detailed above.

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