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Intestate – Intestacy – Intestacy rules

Intestate has generally described the status of not having made a valid Will prior to death. Who inherits if a person died intestate and without a will? The estate must be shared out according to certain rules. This is called the rules of intestacy. In England and Wales, there is a statutory set of rules, the rules are different in Scotland. The estate of such a person will undergo Administration instead of Probate.

What is a Testator?

Within the United Kingdom legal profession, the term Testator (sometimes referred to as Testatrix in the female form) is typically used to describe a person who has, prior to their death, written and executed a Last Will and Testament. Similarly, Testacy (or being Testate) describes the status of being a Testator. The estate (property, savings, possessions etc.) of such a person will go through the Probate process in order to distribute assets to the beneficiaries of the Will. Conversely, a person who dies without having made a Will can be described as being Intestate.

What is Intestacy?

When, upon a person’s death, no Will exists the condition of the deceased’s estate is known as Intestate. There can also be circumstances where a Will has been made but applies only to a portion of the deceased’s estate. The part of the estate falling outside the Will is referred to as the Intestate Estate.

The word Intestate, derived from the Latin word intestatus and in commonly used since the 1650s, is an adjective referring to the situation whereby somebody who, having lawful power to make a will, has not made one, or has made one that is defective in form or invalid in law. It is most commonly used as an adjective to refer to a person not having made a will (i.e. to die intestate), or of things not disposed of by Will (i.e. to remain intestate).
To die Intestate was previously regarded as a crime owing to the omission of the deceased to bequeath an inheritance to the church. This crime was punished by the denial of burial in consecrated ground.

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Intestate and Intestacy rules

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Legal Background

In the UK, Intestacy law (sometimes known as the law of descent and distribution) refers to the body of law which determines who is rightfully entitled to inherit the estate (property, savings, possessions etc.) of a deceased person under the rules of inheritance.

Intestacy Rules are intended to make fair provision for a dependent spouse or other relatives in the event of the death of the person upon whom they were dependent.

Generally speaking, the deceased’s estate is distributed in the following priority:

  1. A surviving spouse or civil partner
  2. Children and their descendants
  3. Parents
  4. Siblings
  5. Siblings’ descendants
  6. Grandparents
  7. Parents’ siblings
  8. Parents’ siblings’ descendants

Should none of the above relatives be identifiable, the order of priority is extended to the more remote degrees of kinship.

What Happens When a Person Dies Intestate?

In England and Wales, if the deceased’s estate is valued below a certain threshold, the estate in its entirety will be inherited by any spouse or civil partner of the deceased. Such inheritances (below the threshold) are currently exempt from UK inheritance tax.

In cases where somebody dies Intestate and the estate has a higher value, the spouse will receive a proportion of the estate as follows:

  • Any property due to pass to them by way of survivorship or under the terms of a trust
  • A statutory legacy (a sum fixed in law that varies depending on whether or not there are any surviving children)
  • A life interest in a percentage of the remaining estate

Any surviving children (or more distant relatives if there are none) will be entitled to a percentage of the estate. This is typically disbursed to them in two halves – The first immediately and the remaining half when the surviving spouse passes away.

In circumstances where a person dies intestate with no identifiable heirs and no beneficiaries can be traced, the law of Bona Vacantia applies. In such cases, the deceased’s estate generally escheats to the Crown (or to the Duchies of Cornwall or Lancaster if the deceased was a resident of either county).

Who Manages the Process?

When somebody dies Intestate, an Administrator (or Administratrix if female) will be appointed by the Probate Division of the High Court of Justice or the local District Probate Registry in order to act as the personal representative of the deceased. The Administrator could, for example, be a relative, family friend or even an otherwise unconnected creditor of the deceased.

Should a creditor of the deceased claim and obtain a Grant of Administration then the court compel them to establish a bond with a minimum of two sureties attesting that their own debt will not receive preferential treatment over those of other creditors.

Under the Intestacy Rules, in situations whereby a minor (child under 18 years old) would inherit, or a life interest would arise, the Court or District Probate Registry would typically appoint two or more Administrators.

Are there Different Rules in Scotland?

In Scottish law, the Intestacy Rules broadly follow those of England and Wales with some small variations. The main difference being that all possible blood relatives are eligible to qualify for a mandatory inheritance. Where no blood relatives can be traced, the estate will pass in its entirety to the Crown under the law of Ultimus Haeres.

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Special Circumstances

There exist certain cases in which Grants of Special Letters of Administration apply. These circumstances include the following:

  • Administration cum Testamento Annexo – When the deceased left a valid Will but did not appoint an Executor, or the appointed Executor is unwilling or unable to carry out their duties
  • Administration de Bonis non Administratis – A) When the Executor dies Intestate after Probate having not administered the estate to completion and B) When the appointed Administrator dies
  • Administration Durante Minore Aetate – When the Executor or the person entitled to the General Grant is a minor (child under 18 years old)
  • Administration Durante Absentia – When the appointed Executor or Administrator is outside the jurisdiction of the court for more than one year
  • Administration Pendente Lite – When there is a dispute which must first be decided.

How can we Help?

Going Legal is ready to assist you in bringing a claim by introducing you to an experienced solicitor who will act for you on a genuine no-win, no-fee basis. The intestate law is complex and requires experience and knowledge in order to navigate it successfully. Our expert specialists will quickly be able to evaluate your case, guide you through the process and introduce you to an experienced solicitor who will work for you on a genuine No-Win, No-Fee basis.

Call 0845 218 0233 to make a claim with zero financial risks or alternatively complete the form opposite and we will contact you.