What is Intestacy?

• Posted onOctober 28, 2022

This article was edited on 26 July 2023 to reflect that the amount of the statutory legacy increased.

WSP Solicitors explain the importance of having a valid will and the complications your family may face if one isn’t in place, better known as intestacy.

Intestacy describes the legal process to be followed when a person dies without making a valid Will. Their assets are then distributed according to the rules of intestacy. These set out in what order the family members would be entitled to inherit the estate.

What are letters of administration?

When someone dies, the relatives entitled to inherit the estate may need to apply to the probate registry for a court-sealed document called a ‘grant’ to be able to access the deceased person’s assets.  A grant of letters of administration specifically relates to the type of grant applied for in the absence of a valid Will. The relatives applying for this grant and who will be the ones dealing with the assets in the estate are known as administrators.

There is a strict order of priority when someone applies to be an administrator. Usually, one or two of the persons entitled to inherit the estate would also be the ones applying for the grant.  However, not all beneficiaries have to act as an administrator. The maximum number of administrators who can appear on a grant is limited to four.

Administrators are appointed by the court upon application and do not have any legal authority until the grant has been obtained.

Who inherits my estate if I die intestate?

The rules of intestacy stipulate in what order of priority your relatives would inherit your estate.

1. If you are married or in a civil partnership:
2. If you have children:

The first £322,000 will go to your surviving spouse or civil partner, along with your personal possessions. Anything in excess of this will be split into two equal shares: one-half to the surviving spouse/civil partner and one half to your children in equal shares.

1. If you do not have children

If you do not have any children but your spouse survives you, they would inherit your entire estate.

2. If you die without leaving a surviving spouse or civil partner, the entire estate will pass to your children.
3. If your child has died before you, then the share they were due to inherit will pass down to their children.
4. In the event that you leave no children or grandchildren, your estate will pass to your surviving parents equally. If this fails, then the estate will be directed to your siblings or their descendants.
5. In cases of blended families which are becoming increasingly common, there may be half-siblings. These half-siblings would not be entitled to receive your estate unless all your siblings of whole blood and their descendants had died.

Subject to there not being someone who is entitled to inherit your estate, this will be re-directed to the Crown.

There are exceptions to the statutory rules set out above which are joint assets and pensions. Joint assets will automatically pass to the surviving joint owner, and pensions will be dealt with at the discretion of the trustees of the pension scheme.

Do I need to make a Will?

A Will enables you to leave your estate to the people of your choice, such as your partner, stepchildren or friends, rather than family members who would otherwise benefit potentially against your wishes.

It allows efficient tax planning to mitigate any potential inheritance tax so you do not pay more than you need to.

You can appoint guardians for minor children rather than this being left up to the courts to determine a suitable guardian.

A Will provides you with the opportunity to consider trusts, such as life interest trusts or discretionary trusts, so you have an element of control over how your assets are utilised after your death.

How can we help?

For peace of mind, a professionally drafted Will which reflects your needs and wishes can be a great tool and insurance for your loved ones.

Whether you feel your needs are straightforward or that you may require specialist advice, our professional and friendly team of Wills and probate solicitors will take a sympathetic and personal approach to help you. Get in touch today by using our quick online enquiry form. Alternatively, you can call us on 01453 847200.