Wills and Intestacy - The intestacy rules

Learning Outcomes

This article sets out the intestacy rules in England and Wales, including:

• The statutory order of entitlement on intestacy and its application to both total and partial intestacy
• How estates are distributed and who inherits in common scenarios
• The respective positions of spouses/civil partners, issue, parents, and other relatives
• The spouse/civil partner’s entitlements where issue survive: personal chattels, statutory legacy, interest, and division of residue
• The operation of statutory trusts under s 33 AEA 1925 and key rules and definitions applied to exam scenarios
• Property that passes outside the estate and its impact (beneficial joint tenancies, nominations, life policies, pension death benefits)
• Representation and per stirpes distribution for issue and siblings, and the distinction between whole blood and half blood relatives
• Special situations affecting entitlement: adopted children, assisted reproduction parentage, stepchildren, disclaimers, forfeiture, and substitution under s 46A AEA 1925

SQE2 Syllabus

For SQE2, you are required to understand and apply the intestacy rules in client-focused scenarios, with a focus on the following syllabus points:

• The principal statutory order determining entitlement on intestacy (s 46 Administration of Estates Act 1925), including priority between spouse/civil partner, issue, parents, and siblings of whole and half blood.
• The operation and effect of the statutory trusts (s 33 AEA 1925), including vesting contingencies, representation, and per stirpes distribution.
• The meaning of key terms: spouse/civil partner, issue, statutory legacy (fixed net sum), personal chattels, residue, and bona vacantia.
• Property passing outside the estate (e.g. beneficial joint tenancies, nominated property, life policies written in trust, discretionary pension death benefits) and the consequences for intestacy calculations.
• Total versus partial intestacy and how failures of gifts (e.g. lapse, ademption, disclaimers) lead to intestacy for undisposed property.
• Special situations: adopted children, assisted reproduction parentage, illegitimate children (modern rules), cohabitees (no entitlement), forfeiture and relief, and substitution on forfeiture/disclaimer (s 46A AEA 1925).

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. What is the statutory order of inheritance if someone dies intestate, leaving no spouse or children but with surviving parents and siblings?
2. What is a partial intestacy, and when does it arise?
3. Who is classed as "issue" under the intestacy rules? Does this include stepchildren or adopted children?
4. Is a cohabiting partner (not married or in a civil partnership) entitled to inherit under the intestacy rules?
5. What does "bona vacantia" mean, and when does the Crown take an intestate estate?

Introduction

The intestacy rules apply automatically where someone dies without leaving a valid will disposing of their entire estate. These statutory rules aim to provide an ordered method for distributing a deceased’s property, but they may produce results that differ from the deceased’s likely wishes. Understanding and applying these rules is essential for providing clear and accurate client advice in probate and succession scenarios.

The principal statute is the Administration of Estates Act 1925 (AEA 1925), especially s 46 (order of entitlement) and s 33 (statutory trusts). The Non-Contentious Probate Rules 1987 (NCPR) govern grant applications and procedure, including who can apply as administrator on a full intestacy (Rule 22). Remember that the personal representatives (PRs)—executors (if there is a valid appointment) or administrators (if not)—must first collect the estate, pay expenses and debts, and only then distribute the residue according to the intestacy rules.

Key Term: intestacy rules
The statutory provisions that set out who inherits a deceased person’s estate where there is no valid will, or part of the will fails to dispose of all property.

A key preliminary step in any intestacy matter is identifying what forms part of the estate for succession purposes and what does not. Some assets pass outside the estate and do not fall under intestacy: for example, property held as beneficial joint tenants (which passes by survivorship), life assurance written in trust or assigned, and discretionary death benefits under occupational pensions. Such assets are paid directly to the relevant recipient and do not form part of the PRs’ succession estate for distribution under s 46. They may, however, be relevant for tax and practical funding purposes.

Types of Intestacy

Intestacy can be either total (no valid will at all) or partial (a will exists but fails to dispose of part of the estate, for example due to lapse or a failed gift). In either situation, the undisposed property passes under the intestacy rules.

Common causes of partial intestacy include a residuary gift failing because the named beneficiary predeceased and there is no substitution, part of residue not being addressed, or a specific or class gift failing with no fallback. Disclaimers can also lead to partial intestacy over the disclaimed property unless there is an effective read-back variation (for tax purposes, see IHTA 1984 s 142; succession continues to follow the will or intestacy as applicable).

Key Term: partial intestacy
When some, but not all, of the deceased’s property passes under the intestacy rules, usually because the will does not deal with all the estate or a gift in the will fails.

The Statutory Order of Entitlement

The principal legislation governing intestacy in England and Wales is found in the Administration of Estates Act 1925 and subsequent amendments.

The rules set a strict order of priority:

1. Spouse or civil partner.
2. Issue (children, grandchildren, further direct descendants).
3. Parents.
4. Brothers and sisters of the whole blood (and the issue of any such siblings who died before the deceased).
5. Brothers and sisters of the half blood (and issue).
6. Grandparents.
7. Uncles and aunts of the whole blood (and issue).
8. Uncles and aunts of the half blood (and issue).
9. The Crown as bona vacantia.

A spouse/civil partner’s entitlement depends on whether issue survive. If there is issue, the spouse/civil partner receives the personal chattels, the statutory legacy (fixed net sum), interest on that legacy from death, and one-half of the residue. The surviving issue take the other half of the residue on statutory trusts. If there is no issue, the spouse/civil partner takes the whole estate.

Key Term: issue
All biological and legally adopted descendants of the deceased, including children, grandchildren, great-grandchildren, and so on. It does not include stepchildren or children simply related by marriage.

Key Term: spouse/civil partner
A person who was lawfully married to, or in a registered civil partnership with, the deceased at the time of death. This does not include former spouses or civil partners following divorce, annulment, or dissolution.

Key Term: statutory legacy
The fixed net sum payable to a surviving spouse/civil partner when issue also survive. It is currently £270,000 for deaths on or after 6 February 2020, payable free of costs and with interest from the date of death at the Bank of England rate. The amount may be revised by statutory order (AEA 1925, Sch 1A).

Key Term: personal chattels
Tangible movable property owned by the deceased (other than money or securities) and not used at death for business purposes. The definition was modernised by s 3(2) of the Inheritance and Trustees’ Powers Act 2014, replacing the older, itemised list in s 55(1)(x) AEA 1925.

Where neither spouse/civil partner nor issue survive, the estate passes to parents, then to siblings of the whole blood and their issue by representation, then to siblings of the half blood and their issue, and so on down the order above. “Whole blood” means siblings who share both parents with the deceased; “half blood” means siblings who share only one parent.

Key Term: representation (per stirpes)
The principle under which the issue of a deceased beneficiary take their parent’s share by substitution. Shares are calculated down the family branches (stirpes), ensuring each branch receives the portion their ancestor would have taken.

Priority rules—worked summary

• If there is a surviving spouse or civil partner and no issue: the spouse takes the entire estate.
• If there is a spouse/civil partner and issue: the spouse receives the personal chattels, the statutory legacy (currently £270,000), and half the remainder; the issue share the other half on statutory trusts.
• If there is no spouse but issue: the issue inherit in equal shares (if all are in the same generation), or per stirpes applying the principle of representation for predeceased issue.
• If neither spouse nor issue survive: the estate passes in turn to parents, siblings (whole blood, then half blood), and further relatives in the priority order above.
• If no entitled relative survives, the estate passes to the Crown as bona vacantia.

Key Term: bona vacantia
Ownerless property passing to the Crown (or Duchy of Lancaster or Duke of Cornwall, depending on circumstances) where there are no heirs or entitled relatives under the intestacy rules. The Treasury Solicitor (now the Government Legal Department) handles such estates.

Worked Example 1.1

A deceased person dies intestate, survived by a spouse/civil partner, three adult children (one of whom died leaving two children), and a parent. The net estate is £400,000. How is the estate distributed?

Answer:
The spouse/civil partner receives the personal chattels, the statutory legacy (currently £270,000), and half the residue. The residue is £130,000; spouse takes £65,000. The remaining £65,000 is divided among the issue: each surviving child gets a share; the predeceased child’s share is split equally between their own issue (grandchildren), per stirpes. Interest is payable on the statutory legacy from the date of death.

Whole blood and half blood siblings

If there is no spouse/civil partner and no issue, parents take absolutely (equally if both survive). Failing parents, siblings of the whole blood take on statutory trusts with representation for any predeceased whole blood sibling’s issue. Only if there are no whole blood siblings or their issue do half blood siblings (and their issue) become entitled, and so on to grandparents and then uncles/aunts of whole and half blood.

Personal chattels and business-use exclusions

The spouse/civil partner’s automatic entitlement to personal chattels excludes money, securities, and any tangible movable property used at the deceased’s death for business purposes. Items acquired primarily as investments (e.g. some collections held as investments) may not be personal chattels; treatment depends on how they were used.

The Statutory Trusts

When issue (or other classes such as siblings) are entitled under the intestacy rules, AEA 1925 imposes statutory trusts. Under s 33(1), the administrators hold on trust with a power of sale. Shares for issue are held on trust until the beneficiary attains 18 (or marries/enters a civil partnership before 18). Representation applies: if a beneficiary dies before attaining an absolute vested interest and before marriage/civil partnership, their issue take by substitution; failing issue, the share accrues to surviving beneficiaries in the class.

The statutory trusts carry the usual trustee duties and powers, including maintenance and advancement (TA 1925, ss 31 and 32, as amended), enabling trustees to apply income for minors and, in appropriate cases, advance capital for the beneficiary’s benefit.

Key Term: statutory trusts
Trusts automatically imposed by law for the shares taken by issue and other specified classes of relatives under intestacy, with prescribed requirements and contingencies for vesting. The administrators act as trustees with power to sell and distribute in accordance with s 33 AEA 1925.

Worked Example 1.2

Dan dies intestate, survived by his spouse Jill and their two minor children (both under 18). Estate worth £350,000 (all sole name). How will the estate pass?

Answer:
Jill receives the personal chattels, and the statutory legacy (currently £270,000) plus interest, and half of the residue. The residue is £80,000; Jill takes £40,000. The remaining £40,000 is held on statutory trusts for the children equally, contingent on reaching 18 (or earlier marriage/civil partnership). If a child dies before 18 and before marrying, their share passes under representation to their issue (if any), otherwise accrues to the surviving child.

Definitions and Special Cases

• Adopted children: Treated as issue of the adoptive parents and not of their birth parents for succession (unless the adoption order preserves a particular link, which is unusual). Adoption does not disturb vested interests already taken before adoption.
• Children born through assisted reproduction (HFEA 2008): Legal parentage follows the Act. For intestacy, “issue” includes children of whom the deceased is a legal parent under the Act. A husband or civil partner may be treated as a parent if consenting to the procedures; conversely, another consenting person may be the second parent.
• Illegitimate children: Entitled in the same way as any other child of the deceased (modern law abolishes distinctions based on parents’ marital status).
• Stepchildren and cohabitees: Not entitled under intestacy. A long-term cohabitee has no right to inherit unless specified in a will. A stepchild is not “issue” for intestacy unless legally adopted.
• Whole blood and half blood: Siblings of the whole blood (sharing both parents) rank ahead of siblings of the half blood (sharing one parent). Representation applies within each class.

Key Term: administrators
Persons appointed by the Probate Registry to administer an intestate estate. They distribute according to the intestacy rules and hold estate assets on statutory trusts until proper distribution.

Worked Example 1.3

Esther dies intestate, survived by her long-term cohabiting partner and an adult child from a previous relationship. Who inherits?

Answer:
The cohabitant has no entitlement under intestacy. The entire estate passes to Esther’s child.

Worked Example 1.4

Maya dies intestate, leaving no spouse or civil partner and no issue. Her mother survives her; her father predeceased. She also leaves one brother of the whole blood and one half-brother. Who inherits?

Answer:
Maya’s mother takes the whole estate absolutely (parents rank before siblings). If both parents had survived, they would have shared equally. Only if no parent survived would siblings of the whole blood (with representation) inherit ahead of half blood siblings.

Spouse/Civil Partner: Statutory Legacy, Interest, and Appropriation

When issue survive, the surviving spouse/civil partner is entitled to:

• Personal chattels (automatically).
• The statutory legacy (fixed net sum), currently £270,000, payable free of costs with interest from death until payment at the Bank of England rate, compounded per current practice in administration.
• One-half of the residue.

The spouse/civil partner may also have rights to appropriate the matrimonial home. Under the Intestates’ Estates Act 1952 Sch 2, a surviving spouse/civil partner may require PRs to appropriate a dwelling house in which they were resident at the deceased’s death, in or towards satisfaction of their share, provided statutory conditions are satisfied. Notice must generally be given within 12 months of the grant (the court can extend time).

Key Term: appropriation (spouse’s right)
The statutory right under the Intestates’ Estates Act 1952 for a surviving spouse/civil partner to require PRs to appropriate the matrimonial home (or a share in it) in or towards satisfaction of their entitlement, subject to conditions and time limits.

Worked Example 1.5

Arun dies intestate, leaving his civil partner Lina and two adult children. The estate includes their sole-name home worth £400,000 and savings of £80,000. Lina wishes to keep living in the home. Can she require appropriation?

Answer:
Yes, Lina can exercise the statutory right to appropriate the dwelling house under the 1952 Act, subject to giving notice and meeting the statutory conditions. The home (or a share of it) can be appropriated in or towards payment of her statutory legacy and share of residue, with any balance accounted for (e.g. by cash equalisation). Interest on the statutory legacy runs from death until paid.

Forfeiture and Substitution on Intestacy

The forfeiture rule prevents a person who has unlawfully killed the deceased from benefiting under the will or intestacy. Relief may be available under the Forfeiture Act 1982 in limited circumstances (never for murder), within strict time limits (three months from conviction). Regardless of relief, a person who forfeits (or disclaims) is treated under s 46A AEA 1925 as having predeceased the intestate, enabling substitution by their issue under the statutory trusts.

Worked Example 1.6

Noah dies intestate leaving his spouse Eva and two children. Eva is convicted of manslaughter in relation to Noah’s death. What is the effect on intestacy?

Answer:
Eva forfeits her entitlement under the intestacy rules (subject to any relief under the Forfeiture Act, which is fact-specific and time-limited). Under s 46A AEA 1925, she is treated as having predeceased. Noah’s children take by substitution as if their parent (Eva) had predeceased; the estate is then distributed among issue on statutory trusts. If relief were granted (never available for murder), it could adjust forfeiture’s effects, but relief is exceptional.

Property Passing Outside the Estate

Certain assets pass outside the PRs’ hands and therefore outside intestacy:

• Beneficial joint tenancies: The deceased’s interest passes by survivorship to the surviving joint tenant(s). It is not part of the succession estate, although for tax purposes the value may be treated in the death estate.
• Life assurance written in trust or assigned: Proceeds are payable directly to trustees/beneficiaries under the policy trust or assignment.
• Pension death benefits: Typically payable at trustees’ discretion to nominated persons or classes; the member’s nomination is usually non-binding. Such benefits are paid to the chosen recipients, not to the PRs, and do not pass by intestacy.
• Statutory nominations: Certain National Savings and friendly society products may be nominated to pass directly to a named person up to the statutory limit.

These are important in practical advice: they may provide liquidity to dependants quickly even where the intestacy rules themselves produce unexpected beneficiaries.

Residue, Partial Intestacy, and Bona Vacantia

Residue is what remains after debts, taxes, and any specific gifts have been paid. If a will disposes of only part of the estate, any residue not covered passes as on intestacy (partial intestacy). Where no entitled relative survives, the whole estate passes as bona vacantia to the Crown (or appropriate Duchy). In a full intestacy, NCPR Rule 22 sets out who may apply for letters of administration, mirroring the order of entitlement.

Key Term: residue
The remainder of the estate after payment of funeral, testamentary and administration expenses, debts, and any specific legacies.

Key Term: personal representatives (PRs)
Executors (if validly appointed) or administrators (appointed by the court) who collect the estate, pay expenses and debts, and distribute according to the will or intestacy.

Worked Example 1.7

Sam dies totally intestate with no spouse/civil partner, no issue, no parents, no siblings of whole or half blood, and no grandparents, uncles or aunts. Who takes?

Answer:
With no entitled relatives in any class, Sam’s estate passes as bona vacantia to the Crown (or relevant Duchy). The Treasury Solicitor handles such estates.

Summary

Key Point Checklist

This article has covered the following key knowledge points:

• The intestacy rules apply to both total and partial intestacy, and PRs must first settle expenses and debts before distribution.
• Statute sets a strict order of priority among spouse/civil partner, issue, parents, siblings of whole blood, siblings of half blood, and further relatives.
• Where issue survive, the spouse/civil partner takes personal chattels, a statutory legacy (with interest), and half the residue; issue take the other half on statutory trusts.
• “Issue” includes biological and adopted descendants but not stepchildren; cohabitees have no intestacy entitlement.
• Statutory trusts apply to shares held for issue and certain other classes, with vesting at 18 (or earlier marriage/civil partnership) and representation per stirpes.
• Spouse/civil partner may exercise a statutory right to appropriate the matrimonial home in or towards their entitlement (subject to conditions).
• Property passing outside the estate (e.g. survivorship, life policies, pension death benefits, nominations) does not pass under intestacy.
• Forfeiture prevents a killer from benefiting; s 46A AEA 1925 treats a forfeiting (or disclaiming) person as predeceased for substitution by their issue.
• Bona vacantia arises where there are no entitled relatives, and the estate passes to the Crown.

Key Terms and Concepts

• intestacy rules
• partial intestacy
• issue
• spouse/civil partner
• statutory legacy
• personal chattels
• statutory trusts
• representation (per stirpes)
• residue
• administrators
• personal representatives (PRs)
• appropriation (spouse’s right)
• bona vacantia

Additional Key Term Definitions

Key Term: representation (per stirpes)
Distribution by family branches. If a beneficiary in a class has predeceased, their issue take the deceased beneficiary’s share, divided equally among them, ensuring each branch receives its proper portion.

Key Term: administrators
Individuals appointed by the Probate Registry to manage and distribute an intestate estate in accordance with the intestacy rules; they act as trustees of the statutory trusts with power to sell.

Key Term: personal representatives (PRs)
The collective term for executors and administrators, responsible for collecting in assets, paying debts and expenses, and distributing the estate according to the will or intestacy.

Key Term: appropriation (spouse’s right)
The right of a surviving spouse/civil partner under the Intestates’ Estates Act 1952 to require appropriation of a dwelling house toward their entitlement, subject to statutory conditions and time limits.

Key Term: residue
The balance of the estate after payment of funeral, testamentary and administration expenses, debts, and any specific legacies or devises.

Key Term: bona vacantia
Ownerless property that passes to the Crown (or appropriate Duchy) where there are no heirs or entitled relatives under the intestacy rules, administered by the Government Legal Department.