Intestacy rules - Overview of intestacy

Learning Outcomes

After reading this article, you will be able to explain how estates are distributed when a person dies without a valid will, identify the statutory order of inheritance, apply the rules of per stirpes distribution, and distinguish between full and partial intestacy. You will also be able to recognise who is excluded from inheriting under intestacy and understand key statutory requirements relevant for SQE1.

SQE1 Syllabus

For SQE1, you are required to understand the statutory framework for intestacy in England and Wales, including the order of entitlement, the effect of partial intestacy, and the treatment of adopted, step, and non-marital children. In your revision, focus on:

• the statutory hierarchy of beneficiaries on intestacy (including spouse/civil partner, issue, parents, siblings, and further relatives)
• the division of estates where both a spouse/civil partner and issue survive
• the concept and application of per stirpes distribution
• the rules on partial intestacy and how undisposed assets are treated
• the treatment of adopted, step, and non-marital children under intestacy
• the survivorship requirement and the effect of the 28-day rule
• who is excluded from inheriting on intestacy (e.g., cohabitees, step-children unless adopted)

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. Who inherits the estate if a person dies intestate leaving a spouse, two children, and no will?
2. What happens to the share of a predeceased child who leaves children of their own?
3. Can a step-child inherit under the intestacy rules if not legally adopted?
4. What is partial intestacy and how is it resolved?

Introduction

When a person dies without a valid will, their estate is distributed according to statutory intestacy rules. These rules provide a fixed order of inheritance, ensuring that the estate passes to relatives in a set sequence. Understanding intestacy is essential for SQE1, as it determines who inherits, in what shares, and what happens if only part of the estate is left undisposed.

Statutory Framework and Order of Entitlement

The intestacy rules in England and Wales are set out in the Administration of Estates Act 1925 (as amended). The rules apply to the estate (property, money, and possessions) of anyone who dies intestate—meaning without a valid will, or where the will does not dispose of the entire estate.

Key Term: intestacy Intestacy is the situation where a person dies without a valid will, or where the will does not cover all their property.

The rules create a strict hierarchy of beneficiaries. The estate is distributed to the first living relative(s) in the order below; only if there is no one in a category does the estate pass to the next:

1. Spouse or civil partner
2. Issue (children, grandchildren, etc.)
3. Parents
4. Siblings of the whole blood (and their issue)
5. Siblings of the half blood (and their issue)
6. Grandparents
7. Uncles and aunts of the whole blood (and their issue)
8. Uncles and aunts of the half blood (and their issue)
9. The Crown (bona vacantia) if no relatives exist

Key Term: issue Issue means all direct descendants of the deceased, including children, grandchildren, and further lineal descendants.

Surviving Spouse or Civil Partner

If the deceased leaves a spouse or civil partner but no issue, the spouse/civil partner inherits the entire estate.

If both a spouse/civil partner and issue survive, the spouse/civil partner is entitled to:

• All personal chattels (personal belongings, excluding money, business assets, and investments)
• A statutory legacy (currently £270,000 for deaths after 6 February 2020)
• Half of the remaining estate (the residue)
• The other half of the residue is divided equally among the issue on statutory trusts

Key Term: statutory legacy A fixed sum from the estate to which a surviving spouse or civil partner is entitled when there is also issue.

Per Stirpes Distribution

Where a child of the deceased has predeceased but leaves children of their own, those grandchildren inherit their parent's share equally. This is known as per stirpes distribution.

Key Term: per stirpes Per stirpes means that each branch of the family receives an equal share, so descendants of a predeceased child take that child’s share.

No Surviving Spouse or Civil Partner

If there is no surviving spouse or civil partner, the estate passes to the issue in equal shares. If there are no issue, the estate passes to parents, then siblings, and so on down the statutory order.

Survivorship Requirement

A beneficiary must survive the deceased by at least 28 days to inherit. If they do not, they are treated as having predeceased the deceased for intestacy purposes.

Key Term: survivorship requirement A statutory rule that a beneficiary must survive the deceased by 28 days to inherit under intestacy.

Partial Intestacy

Partial intestacy occurs when a valid will does not dispose of the entire estate. Any property not covered by the will is distributed according to the intestacy rules.

Key Term: partial intestacy Partial intestacy is where part of the estate is not disposed of by a valid will and passes under the intestacy rules.

Worked Example 1.1

Aisha dies intestate, survived by her husband, Tariq, and two children, Samir and Layla. Her estate is worth £500,000. How is the estate divided?

Answer: Tariq receives all Aisha’s personal chattels, the statutory legacy of £270,000, and half of the remaining £230,000 (£115,000). Samir and Layla share the other £115,000 equally (£57,500 each).

Worked Example 1.2

Ben dies intestate, leaving two children: Chloe (alive) and Daniel (who predeceased Ben but left two children, Emma and Jack). How is Ben’s estate divided?

Answer: Chloe receives half the estate. Daniel’s half passes equally to Emma and Jack, who each receive a quarter.

Adopted, Step, and Non-Marital Children

Adopted children inherit from their adoptive parents as if they were biological children, but not from their biological parents. Step-children do not inherit unless legally adopted. Children born outside marriage are treated the same as those born within marriage.

Key Term: adopted child A child who has been legally adopted and is treated as the child of the adoptive parents for intestacy.

Key Term: step-child A child of the deceased’s spouse or civil partner who has not been legally adopted by the deceased; step-children do not inherit under intestacy.

Key Term: non-marital child A child whose parents were not married to each other; non-marital children inherit on the same basis as marital children.

Excluded Persons

Certain people do not inherit under intestacy:

• Cohabitees (unless married or in a civil partnership)
• Step-children (unless adopted)
• In-laws, friends, carers, and children in care (unless adopted)

Key Term: cohabitee A person who lived with the deceased as a partner but was not married or in a civil partnership; cohabitees do not inherit under intestacy.

Bona Vacantia

If there are no surviving relatives in any of the statutory categories, the estate passes to the Crown as bona vacantia.

Key Term: bona vacantia Property that passes to the Crown when a person dies intestate without any entitled relatives.

Summary

Table: Statutory Order of Entitlement on Intestacy

Key Point Checklist

This article has covered the following key knowledge points:

• Intestacy rules apply where there is no valid will or where a will does not dispose of the entire estate.
• The statutory order of entitlement determines who inherits and in what shares.
• Surviving spouse/civil partner and issue share the estate according to fixed rules.
• Per stirpes distribution ensures descendants of predeceased children inherit their parent’s share.
• Adopted children inherit as biological children; step-children and cohabitees do not inherit unless adopted or married/in a civil partnership.
• The 28-day survivorship rule applies to all beneficiaries.
• Partial intestacy occurs where a will does not dispose of the whole estate; undisposed assets pass under intestacy.
• If there are no entitled relatives, the estate passes to the Crown as bona vacantia.

Key Terms and Concepts

• intestacy
• issue
• statutory legacy
• per stirpes
• survivorship requirement
• partial intestacy
• adopted child
• step-child
• non-marital child
• cohabitee
• bona vacantia