If a person dies without a will, the law regards them as having died 'intestate'.

Intestacy in England and Wales

In this situation, there will be no appointed executor to administer and distribute the estate, so it is left to the deceased's next of kin (or other party) to apply to the Probate Registry in order to obtain a document known as Grant of Letters of Administration. 

Who can apply for probate?

Inheritance tax rules

The rules of inheritance tax apply even when someone dies without a will. It is only once the inheritance tax has been paid that a suitable administrator can be appointed, and the assets and liabilities of the estate can be calculated and distributed to the correct beneficiaries.

The rules regarding distribution of estates changed in 2014, so it is vital that anyone affected by a close friend or relative dying intestate seek legal advice from a suitable probate solicitor.

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The rules of intestacy

Under the rules of intestacy, where the deceased has a surviving spouse or civil partner and no children, the entire estate is passed to the spouse/civil partner.

Where the deceased has a surviving spouse/civil partner and surviving children, grandchildren or great-grandchildren, the spouse/civil partner will receive the personal belongings and the first £250,000 of any estate, with the value of any assets above this threshold shared equally between the surviving adult and the deceased's children.

Where there is no surviving spouse/civil partner, but the deceased has surviving children, then the entire estate passes to the children to be shared equally among them.

The term 'children' includes illegitimate and adopted children, but not stepchildren

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Jointly owned property

There are two different types of joint ownership of a residential property:

Beneficial Joint Tenancies

As beneficial tenants in common, a couple do not own a specific share of the property. It is simply jointly owned by both people. When one of the couple dies, the surviving partner would automatically inherit the deceased’s share of the property. Under beneficial tenants in common ownership, it is not possible for a joint owner to leave their share of the house to someone else in a will, or for someone else to try to lay claim to the deceased’s share.

Tenancies in Common

As tenants in common, each person owns a specific share of the property (usually an equal share each, unless there is a Deed of Trust stating otherwise). When one of the couple dies, the surviving partner does not automatically inherit the deceased’s share, as each person is free to leave their share of the property to whomever they like in their will.

Joint bank accounts

Couples often have a joint bank account, when one person dies, the surviving partner automatically inherits the deceased’s share of the monies in the account. The deceased’s share of any monies in joint bank accounts is part of their estate.

Who cannot inherit?

  • Unmarried partners or those not in a civil partnership
  • Relations by marriage
  • Close friends
  • Carers

Unfortunately, intestacy law still does not recognise couples who are unmarried or not in a civil partnership. However, under the Inheritance (Provision for Family and Dependants) Act 1975, an unmarried partner can make a claim for financial provision providing they have been cohabitating with the deceased for a minimum of at least two consecutive years prior to the deceased’s death.  It is vital that if you are considering such a claim that you seek legal advice at the earliest opportunity.

Probate solicitors for matters related to intestacy

Coming to terms with the emotional, as well as practical fallout, of the death of a loved one is always difficult, but this already difficult time can be made all the worse when a person has died intestate (without a will).

Oratto's experienced probate solicitors can give you the independent advice you need to save you from distress and inconvenience, while also helping to protect your interests and those of any dependents.

Our Oratto member lawyers have years of experience in this often complex field and are perfectly positioned to guide you through the often tricky stages of intestate and probate.

Find a rated and reviewed Oratto specialist local to you by browsing through our member profiles, alternatively, try our Match Service, or contact us today.