Because no will was written, the law decides who inherits the estate. This is decided according to certain factors called ‘intestacy rules’.
If a relative or friend is willing and able to sort deal with the probate process and distribution of the estate, they can apply for a ‘grant of letters of administration’. This is also known as ‘grant of representation’, a ‘grant of probate’, or in Scotland, ‘confirmation’.
The grant makes a person the ‘administrator’ of the estate which allows them to make a valuation of the estate, pay any outstanding debts and distribute the estate according to the intestacy rules.
Carrying out this process without a will usually takes a lot longer so the sooner you apply for ‘grant of letters of administration’, the sooner the you can distribute the estate to whom it is due.
If there are no surviving relatives, the person’s estate passes to the Crown. HM Treasury will be responsible for conducting all legal processes regarding the deceased’s estate.
If someone makes a will but it turns out to be legally invalid, the rules of intestacy decide how the estate will be shared out.
Who Can Apply?
It is possible to apply to be an ‘administrator’ of the estate if the person did not leave a will. The process is the same as applying for probate.
You can usually apply if you’re the person’s next of kin, so your spouse, civil partner or child for example. If you were separated from your spouse but still married or in a civil partnership when they died, you can still apply.
You cannot apply if the deceased was your partner (even if you cohabited) as opposed to a spouse or civil partner when they died. You are not automatically entitled to any of your partner’s estate if this is the case.
Upon a successful application to become ‘administrator’, you will receive ‘letters of administration’ to prove you have the legal right to deal with the estate.
There are two different ways of jointly owning a home; “beneficial joint tenancies” and “tenancies in common”.
If you and your partner were “beneficial joint tenants” and one of you dies, the surviving partner will automatically inherit the other partner’s share of the property. The property will be entirely in their legal possession.
However, if the partners are “tenants in common”, the surviving partner does not automatically inherit the other person’s share.
Partners may also have joint bank and/or building society accounts. If one dies, the surviving partner will automatically own everything held in the account.
Property, money and belongings that the surviving partner inherits does not count as part of the estate of the person who has died when being valued for the intestacy rules.
The children of a person who dies intestate will inherit everything if there is no surviving married or civil partner. If there is a surviving partner it is slightly more complicated:
Children – If No Surviving Married or Civil Partner
If there is no surviving spouse or civil partner, the children of a person who has died intestate will inherit the entire estate no matter how much it is worth.The estate will be divided equally between multiple children.
Children – With a Surviving Spouse or Civil Partner
If there is a surviving spouse or civil partner, a child will only inherit from the estate if it is valued at over £250,000. Multiple children will inherit equal shares which will work out as one half of the value above £250,000.
All the children of a parent who dies intestate inherit equally including children from different relationships.
A child whose parents are not married or in a civil partnership will inherit the estate of a parent who dies intestate.
Legally adopted children can inherit under the rules of intestacy.
Children do not receive their inheritance immediately, but receive it when they reach the age of 18, or marry / form a civil partnership below this age. Until then, trustees manage the inheritance on their behalf.
Grandchildren and Great Grandchildren
Grandchildren or great grandchildren cannot inherit the estate of an intestate person unless their parent or grandparent is dead already or their parent is alive when the intestate person dies but dies before reaching the age of 18 without marrying or forming a civil partnership.
In this case, grandchildren and great grandchildren will inherit equal shares to which their parent or grandparent would have been entitled.
Other Close Relatives
Parents, brothers and sisters and nieces and nephews may inherit under the rules of intestacy. Depending on:
- Whether there is a surviving spouse or civil partner,
- Whether there are children, grandchildren or great grandchildren,
- In the case of nephews and nieces, whether the parent directly related to the person who has died is also dead
- The amount of the estate.
If a person dies intestate and had no surviving married partner or civil partner, children, grandchildren, great grandchildren, parents, brothers, sisters, nephews or nieces, they may may have a right to inherit.
The order of priority amongst other relatives is as follows:
- Uncles and aunts. A cousin can inherit instead if the uncle or aunt who would have inherited died before the intestate person
- Half-uncles and half-aunts. A half-cousin can inherit instead if the half-uncle or half-aunt who would have inherited died before the intestate person
Who Cannot Inherit
If someone dies without leaving a will the following people do not have a claim on the deceased’s estate:
- Unmarried partners
- Lesbian or gay partners not in a civil partnership
- Relations by marriage
- Close friends
In certain cases you may be able to apply to court for financial provision from the estate.
If There Are No Surviving Relatives
If there are no surviving relatives of the deceased, the estate passes to the Crown, a process known as bona vacantia. The Treasury Solicitor then deals with the estate. The Crown can make grants from the estate but does not have to agree to them.
If you are not a surviving relative, wish to apply for a grant, you need to seek legal advice.
How Is The Estate Shared Out?
If someone dies without leaving a will it is possible to rearrange the way property is shared, provided two years have not passed since the death. This is “making a deed of family arrangement” or “variation”. All who would inherit under the rules of intestacy must agree.
If they do agree, the property can be shared out in a particular way so that people who do not inherit under the intestacy rules can still inherit part of the estate. The amount that people get is different to what the rules of intestacy would decide, but everyone involved must be in agreement about this.
Legal advice should be sought if you think this applies to you.
It is possible to apply to the court for reasonable financial help which will be derived from the estate of the person who has died intestate. You might do this if you were a co-habiting partner for example. However, you must have lived with them for at least two years immediately prior to their death. You might also take this route if you were always considered a member of the family. You would not inherit under intestacy rules but you could apply to the court for financial help.
An application must be made within a certain time limit. In certain cases this can be negotiated.
Do I Need A Solicitor?
Conducting affairs surrounding the estate of a person who dies intestate can pose many expensive problems. This is especially true if it’s not known exactly what assets the deceased owned, or even more so if there are difficult, complex family relationships. This makes distributing the estate under intestacy rules difficult.
In situations such as these it is wise to consider using a specialist solicitor that has a thorough knowledge in all areas of probate. Using a probate specialist can make the process intestacy much easier for the people left in charge of the situation and a bit quicker too. This is the case in most situations, even when less complicated estates are involved.