Wills and Intestacy - The intestacy rules

Learning Outcomes

After reading this article, you will be able to set out the statutory rules which apply when an individual dies intestate in England and Wales. You will know how the estate is distributed on both total and partial intestacy, who is entitled to inherit, and be able to distinguish the position of spouses/civil partners, issue, and other relatives. You will understand the statutory trusts and be prepared to apply key rules and definitions to exam scenarios involving intestacy.

SQE2 Syllabus

For SQE2, you are required to understand and apply the intestacy rules in client-focused scenarios. When revising, pay specific attention to:

• The principal statutory order determining entitlement on intestacy, especially the priority between spouses/civil partners, issue, and other classes of relatives.
• The operation and effect of the statutory trusts, including the position of contingent interests for descendants and remoter issue.
• The meaning of key terms: spouse/civil partner, issue, statutory legacy, residue, and bona vacantia.
• The implications and procedure in both total and partial intestacy.
• The legal consequences for specific family members, including treatment of stepchildren, adopted children, and those not biologically related.

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. What is the statutory order of inheritance if someone dies intestate, leaving no spouse or children but with surviving parents and siblings?
2. What is a partial intestacy, and when does it arise?
3. Who is classed as "issue" under the intestacy rules? Does this include stepchildren or adopted children?
4. Is a cohabiting partner (not married or in a civil partnership) entitled to inherit under the intestacy rules?
5. What does "bona vacantia" mean, and when does the Crown take an intestate estate?

Introduction

The intestacy rules apply automatically where someone dies without leaving a valid will disposing of their entire estate. These statutory rules aim to provide an ordered method for distributing a deceased’s property, but they may produce results that differ from the deceased’s likely wishes. Understanding and applying these rules is essential for providing clear and accurate client advice in probate and succession scenarios.

Key Term: intestacy rules
The statutory provisions that set out who inherits a deceased person’s estate where there is no valid will, or part of the will fails to dispose of all property.

Types of Intestacy

Intestacy can be either total (no valid will at all) or partial (a will exists but fails to dispose of part of the estate, for example due to lapse or a failed gift). In either situation, the undisposed property passes under the intestacy rules.

Key Term: partial intestacy
When some, but not all, of the deceased’s property passes under the intestacy rules, usually because the will does not deal with all the estate or a gift in the will fails.

The Statutory Order of Entitlement

The principal legislation governing intestacy in England and Wales is found in the Administration of Estates Act 1925 and subsequent amendments.

The rules set a strict order of priority:

1. Spouse or civil partner.
2. Issue (children, grandchildren, further direct descendants).
3. Parents.
4. Brothers and sisters of the whole blood (and the issue of any such siblings who died before the deceased).
5. Brothers and sisters of the half blood (and issue).
6. Grandparents.
7. Uncles and aunts of the whole blood (and issue).
8. Uncles and aunts of the half blood (and issue).
9. The Crown as bona vacantia.

Key Term: issue
All biological and legally adopted descendants of the deceased, including children, grandchildren, great-grandchildren, and so on, but not stepchildren or children simply related by marriage.

Key Term: spouse/civil partner
A person who was lawfully married to, or in a registered civil partnership with, the deceased at the time of death. This does not include former spouses or civil partners following divorce, annulment, or dissolution.

Priority rules—worked summary

• If there is a surviving spouse or civil partner and no issue: the spouse takes the entire estate.
• If there is a spouse/civil partner and issue: the spouse receives the personal chattels, a statutory legacy, and half the remainder; the issue share the other half on statutory trusts.
• If there is no spouse but issue: the issue inherit in equal shares (if all are in the same generation), or per stirpes applying the principle of representation for predeceased issue.
• If neither spouse nor issue survive: the estate passes in turn to parents, siblings, and further relatives in the priority order above.
• If no entitled relative survives, the estate passes to the Crown as bona vacantia.

Worked Example 1.1

A deceased person dies intestate, survived by a spouse/civil partner, three adult children (one of whom died leaving two children), and a parent. The net estate is £400,000. How is the estate distributed?

Answer:
The spouse/civil partner receives the personal chattels, the statutory legacy (currently £270,000), and half the residue. The remaining half of the residue is divided between the issue: each surviving child gets a share; the predeceased child’s share is split equally between their own issue (grandchildren), per stirpes.

The Statutory Trusts

When issue are entitled under the intestacy rules, the Administration of Estates Act 1925 imposes statutory trusts over their shares. Each share for issue is held on trust until the beneficiary attains 18 (or marries/enters a civil partnership before 18). If an entitled issue beneficiary dies before 18 and before marriage/civil partnership, the statutory trusts operate so their issue take the share, or the share accrues to surviving siblings in default.

Key Term: statutory trusts
Trusts automatically imposed by law for the shares taken by issue and other specified classes of relatives under intestacy, with prescribed requirements and contingencies for vesting.

Worked Example 1.2

Dan dies intestate, survived by his spouse Jill and their two minor children (both under 18). Estate worth £350,000 (all sole name). How will the estate pass?

Answer:
Jill receives the furniture and car (personal chattels), and the first £270,000 plus half of the remainder. The other half of the residue is held on statutory trusts for the children equally, subject to the contingency of reaching 18 or earlier marriage/civil partnership. If a child dies before 18 and before marrying, that share passes to the other child. If both die, their issue (if any) would take.

Definitions and Special Cases

• Adopted children: Treated as issue of the adoptive parents, but lose status as issue of their biological parents following adoption.
• Stepchildren and cohabitees: Not treated as issue or as entitled relatives under intestacy. A long-term cohabitee has no right to inherit unless specified in a will.
• Illegitimate children: Now entitled in the same way as any other child of the deceased.

Worked Example 1.3

Esther dies intestate, survived by her long-term cohabiting partner and an adult child from a previous relationship. Who inherits?

Answer:
The cohabitant has no entitlement. The entire estate passes to Esther’s child.

Residue, Partial Intestacy, and Bona Vacantia

Residue is what remains after debts, taxes, and any specific gifts have been paid. If a will disposes of only part of the estate, any residue not covered passes as on intestacy (partial intestacy). Where no entitled relative survives, the whole estate passes as bona vacantia to the Crown.

Key Term: bona vacantia
The situation in which an intestate estate passes to the Crown as ownerless property, due to the absence of any heirs or entitled relatives.

Summary

Key Point Checklist

This article has covered the following key knowledge points:

• The intestacy rules apply to both total and partial intestacy.
• Statute sets a strict order of priority among spouse/civil partner, issue, parents, siblings, and further relatives.
• "Issue" includes biological and adopted descendants but not stepchildren or cohabitees.
• Statutory trusts operate whenever shares are held for issue and other classes, usually until age 18.
• Spouses/civil partners may take all, or share with issue, but divorce or dissolution removes entitlement.
• Bona vacantia arises where there are no entitled relatives, and the estate passes to the Crown.
• Cohabitees, unless mentioned in a will, have no right to inherit under intestacy.

Key Terms and Concepts

• intestacy rules
• partial intestacy
• issue
• spouse/civil partner
• statutory trusts
• bona vacantia