What to do when someone dies without a Will: Estate administration advice

• Posted onNovember 19, 2024

Last year the National Will Register reported that only 44% of UK adults have made a Will.  This surprising figure means that at some point in the future you may find yourself having to deal with the estate of someone who has died without a Will. Lindsey Tanner, a paralegal in our Private Client Department, walks through the process of handling an estate when someone dies without a will, ensuring that you understand your rights and responsibilities every step of the way.

A Will lets you decide what happens to your property, money and belongings after your death. It ensures your estate is inherited by people you would like to benefit (the ‘beneficiaries’) and it establishes who will be in charge of administering your estate (the ‘executor’).

When someone dies without a Will, they are said to have died intestate, and their estate is distributed according to the rules of intestacy.  These strict rules are set out in the Administration of Estates Act 1925 and decide who can administer and benefit from the deceased’s estate.

Who is the executor when there is no will?

The rules of intestacy place relatives in an order of priority, to determine who is entitled to apply to be an administrator.   Any next of kin can apply to be an administrator in the following order of priority:

• Spouse/civil partner
• Children (or grandchildren if pre-deceased)
• Parents
• Siblings (firstly whole blood or their children if pre-deceased, then half-blood)
• Grandparents
• Remoter relatives

If there are no surviving relatives, then the estate passes to the Crown and the Treasury Solicitor is responsible for dealing with the estate.

The strict rules about who can be an administrator can potentially lead to disagreements, as they do not take account of modern relationships or family dynamics.  You will notice unmarried couples/those not in a civil partnership and relations by marriage (e.g. stepchildren) are excluded from acting as administrator.

As an administrator, in addition to the tasks usually undertaken by an executor, you will also need to make sure that you have identified all potential beneficiaries.  Great care must be taken to avoid mistakes, as an administrator can be held personally financially liable for any loss resulting from a breach of their duty.  Tracing potential beneficiaries can also cause delays and sometimes incur significant costs, which can dimmish the value of an estate.

Understanding the need for a grant of letters of administration in intestate estates

If you are dealing with an intestate estate, you may need to apply for a grant of letters of administration (rather than a grant of probate) and this document gives legal authority to the named person to administer the estate.

In order to determine whether it is needed, you will need to look at the assets in the estate.  Depending on the institution and the amount involved, a grant of letters of administration may not be needed to release funds and close accounts.  You will need to contact each organisation to find out their requirements.

It is also worth noting that any jointly held assets will automatically pass to the survivor.  Although please be aware that if a property is held as tenants in common rather than joint tenants, the deceased’s share will pass according to the rules of intestacy.

Who can inherit under the rules of intestacy?

The order of priority which applies to those entitled to be an administrator, also applies to those entitled to inherit.  This means only married or civil partners and some other close relatives can inherit under the rules of intestacy.  If there are no surviving relatives, the estate passes to the Crown, known as bona vacantia.

The estate can be inherited as follows:

1. If there is a surviving spouse or civil partner but no children, the spouse/civil partner will inherit everything.
2. When there is a spouse/civil partner and surviving children, the intestacy rules also dictate the proportion each beneficiary receives. A surviving spouse/civil partner will be entitled to:

• • all the personal property and belongings of the person who has died; and
  • the first £322,000 of the estate; and
  • half of the remaining estate (if valued over £322,000) with the remaining half passing to the surviving children, who inherit when they reach the age of 18. If a child is under 18, their share is held on trust for them until this time.

3. If there is no surviving spouse/civil partner, the estate passes to any surviving children (or grandchildren if pre-deceased).
4. When the deceased leaves no surviving partner, children or grandchildren, the estate passes to surviving parents first, then siblings, followed by remoter relatives.

Again, there is no provision for unmarried partners/those not in a civil partnership, which can leave them in a vulnerable position.  Relations by marriage (including stepchildren), close friends and carers, who the deceased may have wished to benefit, have no right to inherit under the intestacy rules.

Can the intestacy rules be challenged?

While the intestacy rules cannot be challenged, it may be possible to redistribute the estate.

For example, changes can be made by way of a deed of variation, providing all those over 18 who are due to inherit under the rules of intestacy agree and it is done within two years of the date of death.

Under the Inheritance (Provision for Family and Dependents) Act 1975, certain people are also allowed to apply to the court if the estate’s distribution has not made reasonable financial provision for them.  This includes someone who has been living with the deceased for at least two years prior to death, a person who is treated as a child of the family and anyone financially dependent on the deceased at the time of their death.

How can we help?

Dealing with the administration of an estate can be difficult enough even when there is a valid Will to guide you.  Intestacies can require extra time and research, and you may find yourself trying to navigate disagreements as the strict intestacy rules divide the deceased’s estate in a way they may not have chosen.  As an administrator, you are able to instruct solicitors to assist you.  At WSP we aim to make life less complicated, and we would be happy to advise and assist you with our fixed-fee administration service.

If you have any questions about intestacy or estate administration, please get in touch.  You can email us at contact@wspsolicitors.com, use the enquiry form on the side of this page, or give us a call at 01453 847200. We’re happy to help!