Intestacy rules - Overview of intestacy

Learning Outcomes

This article outlines the statutory intestacy rules in England and Wales, including:

• Applicability of the statutory intestacy regime and property that falls outside it (for example, joint assets passing by survivorship, pension death benefits, and life policies in trust)
• Statutory order of entitlement to an intestate’s residuary estate and treatment of whole-blood and half-blood relatives
• Distribution where a spouse/civil partner survives (with and without issue), calculation of the statutory legacy and its interest, and the 28‑day survivorship requirement
• Per stirpes distribution on statutory trusts and entitlement on failure of a branch
• Full versus partial intestacy and treatment of undisposed-of assets on partial intestacy
• Status of adopted children, step-children and children whose parents were not married to each other, and the effect of assisted reproduction and posthumous births
• Excluded persons (e.g., cohabitees, step-children unless adopted) and the effect of the forfeiture rule and disclaimers
• Definitions of “personal chattels” and “statutory trusts” and the commorientes rule where order of death is uncertain

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, with a focus on the following syllabus points:

• 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 and commorientes
• the definitions of personal chattels and statutory trusts and their operation on intestacy
• 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.

Intestacy only governs property the deceased could have disposed of by will. Certain assets pass outside the estate altogether, for example property held as beneficial joint tenants (which passes to the survivor by survivorship), lump-sum death benefits under discretionary pension schemes, and life policy proceeds written in trust or assigned during lifetime.

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.

Key Term: statutory order
The fixed hierarchy set by statute for distributing an intestate estate. A class only takes if no one survives in every class above it.

Key Term: personal chattels
Under s55(1)(x) Administration of Estates Act 1925 (as amended by the Inheritance and Trustees’ Powers Act 2014), personal chattels means tangible movable property (e.g., furniture, jewellery, motor vehicles) other than money, securities, or property held for business purposes or as an investment.

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: statutory trusts
Where issue (or more remote relatives in their class) take, they do so on statutory trusts. Shares are held for the class members who survive the intestate by 28 days and attain a vested interest, with representation down the bloodline per stirpes and minors’ shares held and invested until vesting (usually at 18 or earlier marriage/civil partnership).

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

Whole-blood relatives (sharing both parents with the intestate) rank ahead of half-blood relatives (sharing only one parent) at the sibling and uncle/aunt tiers.

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. This includes all personal chattels and the whole residuary estate, regardless of whether parents or siblings survive. Separation does not disqualify a spouse; only a final decree of divorce, dissolution or annulment removes spousal status.

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

• All personal chattels
• A statutory legacy (currently £270,000 for deaths after 6 February 2020), which carries interest from the date of death until payment at the prescribed rate
• 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. It accrues interest from death until paid.

Practical points:

• Judicial separation does not end spousal status. A spouse/civil partner remains entitled unless the marriage/civil partnership has been legally ended.
• Where the estate is worth less than or equal to the statutory legacy, the spouse/civil partner takes all, leaving nothing for issue.
• The survivor must satisfy the 28‑day survivorship requirement to take (see below).

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.

Under the statutory trusts, issue take by representation down their branch. A living child of the intestate excludes their own issue; representation only occurs when a person in the nearer generation has died leaving descendants.

No Surviving Spouse or Civil Partner

If there is no surviving spouse or civil partner, the estate passes to the issue in equal shares per stirpes on statutory trusts. If there are no issue, the estate passes to parents absolutely; if none, to siblings of the whole blood (or their issue) on statutory trusts; then to siblings of the half blood (or their issue); and so on down the statutory order. If no one at all is entitled, the estate becomes bona vacantia and passes to the Crown (or the Duchies of Lancaster or Cornwall, as applicable).

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

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. For a surviving spouse/civil partner, this is an express statutory requirement. For other classes taking on statutory trusts, survival by 28 days is built into the trust machinery.

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

Key Term: commorientes
Under s184 Law of Property Act 1925, where two or more people die in circumstances where it is not possible to determine the order of deaths, the older is presumed to have died first. This affects who is treated as surviving whom for intestacy (and the 28‑day rule).

The survivorship rule commonly interacts with joint property held as beneficial joint tenants: if the order of death is uncertain, s184 may prevent survivorship and cause the interest to fall into the estate (or, conversely, to pass out of it).

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. This can happen, for example, if a residuary gift lapses (e.g., the residuary beneficiary has predeceased and there is no substitute) or if the will omits a residuary clause altogether.

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.

Statutory trusts apply to property passing on the intestacy portion, operating alongside any trusts declared by the will over other property. The personal representatives administer the estate as a whole but must respect both sets of directions.

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.

Worked Example 1.3

Cora dies intestate leaving a civil partner, Mia, and no issue. Cora also leaves her parents. The estate is £180,000 plus household effects. What does Mia receive?

Answer:
Mia takes the entire estate, including all personal chattels and all residue. Parents receive nothing where a spouse/civil partner survives and there is no issue.

Worked Example 1.4

Dylan and Erin (husband and wife) are involved in an accident. Their dates of death are uncertain. Dylan was older. Dylan’s will left everything to Erin, but if she predeceased, to his sister. Erin left no will. Who takes Dylan’s estate?

Answer:
Under commorientes, the older (Dylan) is deemed to have died first. Erin is therefore treated as having survived him, but she must also survive by 28 days to inherit under intestacy; here, her entitlement arises under Dylan’s will, which contains no 28‑day clause. However, because Erin’s death is also uncertain relative to the 28‑day period for her own intestacy, her estate might be minimal. On these facts, Erin is deemed to have survived and takes under Dylan’s will, but her subsequent death means Dylan’s assets fall into Erin’s estate and are then distributed under her intestacy (to her statutory heirs). If Dylan had died intestate, Erin would be treated as surviving him (by s184), but would still need to satisfy the 28‑day survivorship to take under intestacy.

Worked Example 1.5

Fleur dies intestate leaving no spouse, no issue, one surviving whole-blood sister (Gina), and one surviving half-brother (Hassan). The estate is £300,000. How is it distributed?

Answer:
The whole-blood sister (Gina) takes the entire estate. Half-blood siblings only inherit if there are no surviving whole-blood siblings (or their issue).

Worked Example 1.6

Hamid dies intestate leaving a spouse and three items: £135,000 in a savings account, an investment wine collection worth £75,000 (kept for investment), and a sailing boat worth £785,000 used for leisure. Which items are “personal chattels” that pass automatically to the spouse?

Answer:
The sailing boat is a personal chattel (an article of personal use/ornament) and passes to the spouse. The wine collection is excluded because it was held as an investment. Cash in the savings account is not a personal chattel.

Worked Example 1.7

Ivy dies intestate leaving a spouse and two children. The net estate (after debts) is £250,000 plus personal chattels. What happens?

Answer:
The spouse takes all personal chattels and the entire £250,000 because the net estate does not exceed the statutory legacy. The issue receive nothing.

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. If the adoption is by a step-parent together with one natural parent, the child remains entitled to inherit from the natural parent who is also the adopter.

Step-children do not inherit unless legally adopted. Children born outside marriage are treated the same as those born within marriage. For a child to inherit as issue of the intestate, there must be legal parentage—established by birth to the mother, the legal presumptions in the Human Fertilisation and Embryology Act 2008, or recognition/paternity evidence where necessary.

A child en ventre sa mère (conceived but not yet born at the death) who is later born alive is treated as living at the death for succession purposes.

Key Term: adopted child
A child who has been legally adopted and is treated as the child of the adoptive parents for intestacy. Adoption severs succession rights to and from the birth family (subject to step‑parent adoption nuances).

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)
• Former spouses/civil partners (if the marriage/civil partnership has been legally ended before death)

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.

Two further points:

• Forfeiture rule: a person who unlawfully kills the intestate is barred from benefitting. By statute, their issue may take as if the killer had predeceased.
• Disclaimers: an entitled beneficiary may disclaim. The estate is then distributed as if that beneficiary had predeceased.

Property Passing Outside the Will or Intestacy

Some assets never form part of the estate for intestacy distribution:

• Property owned as beneficial joint tenants (passes by survivorship to the surviving joint tenant)
• Discretionary pension death benefits (payable at trustees’ discretion; commonly outside the estate)
• Life assurance policies written in trust or assigned (proceeds paid to trustees/assignees)

Conversely, property held as tenants in common, life interests ending on death, and assets in the deceased’s sole name vest in the personal representatives and are distributed under the will or, failing that, the intestacy rules.

Practical Administration Features of Statutory Trusts

When issue or more remote relatives take on statutory trusts:

• Their shares are contingent on survival by 28 days and vesting (usually attaining 18 or earlier valid marriage/civil partnership)
• Minor shares are held, invested and applied for maintenance at trustees’ discretion under the default trust powers
• If a class member dies before vesting leaving issue, that issue generally take their parent’s share by representation, per stirpes

Personal representatives may appropriate assets in satisfaction of shares (for example, transferring the family home to the spouse towards their entitlement), subject to statutory requirements and any necessary consents.

Bona Vacantia

If there are no surviving relatives in any of the statutory categories, the estate passes to the Crown as bona vacantia. The Crown (or Duchy, as appropriate) may in practice exercise discretion to make ex gratia payments, but there is no entitlement as of right.

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, and only to property capable of passing by will.
• The statutory order of entitlement determines who inherits and in what shares; whole-blood relatives rank ahead of half-blood relatives at the same tier.
• If a spouse/civil partner and issue survive, the survivor takes personal chattels, the statutory legacy (plus interest), and half of the residue; issue take the other half on statutory trusts.
• Per stirpes distribution ensures descendants of predeceased children inherit their parent’s share; issue take on statutory trusts with representation down the line.
• Adopted children inherit from adoptive parents (but not birth parents); step-children and cohabitees do not inherit unless adopted or married/in a civil partnership; non-marital children inherit equally.
• The 28-day survivorship rule applies; commorientes resolves uncertain order of deaths by deeming the older to have died first.
• Partial intestacy occurs where a will does not dispose of the whole estate; undisposed assets pass under intestacy alongside any will trusts.
• Personal chattels are defined narrowly; investment items (e.g., collections held as investments) and money are excluded.
• If there are no entitled relatives, the estate passes to the Crown as bona vacantia; the forfeiture rule and disclaimers may alter who is treated as taking.

Key Terms and Concepts

• intestacy
• statutory order
• personal chattels
• issue
• statutory legacy
• per stirpes
• statutory trusts
• survivorship requirement
• commorientes
• partial intestacy
• adopted child
• step-child
• non-marital child
• cohabitee
• bona vacantia