What Is Intestacy?

Intestacy occurs when a person dies without leaving a valid will, or when a will exists but does not cover all of the deceased's assets. In England and Wales, the rules of intestacy are set out in the Administration of Estates Act 1925 (as amended). These rules determine who is entitled to inherit from the estate, in a fixed order of priority. The rules do not take into account the deceased's wishes, relationships, or circumstances — they apply automatically regardless of what the deceased may have intended.

Who Inherits Under Intestacy?

Under the rules of intestacy in England and Wales, the estate passes in the following order of priority:

• Spouse or civil partner (subject to certain conditions)
• Children (including adopted children, but not stepchildren)
• Grandchildren and great-grandchildren
• Parents
• Siblings (full brothers and sisters)
• Half-siblings
• Grandparents
• Aunts and uncles
• Half-aunts and half-uncles
• The Crown (if no relatives can be found)

Spouse or Civil Partner and Children

Where the deceased is survived by a spouse or civil partner and children, the estate is divided between them. The spouse or civil partner receives all personal possessions, the first £322,000 of the estate (the statutory legacy, which is periodically reviewed), and half of the remainder. The other half of the remainder is divided equally between the children. If there are no children, the spouse or civil partner inherits the entire estate. Unmarried partners — regardless of how long they have been together — have no automatic right to inherit under intestacy.

Who Administers the Estate?

Where there is no will, there is no executor. Instead, an administrator is appointed to deal with the estate. The administrator is usually the person with the highest priority to inherit under the rules of intestacy — typically the surviving spouse or civil partner, or the children if there is no surviving spouse. The administrator applies to the Probate Registry for Letters of Administration, which grant them the legal authority to deal with the estate. The process is similar to applying for a Grant of Probate, but the application form is different (PA1A rather than PA1P).

Letters of Administration

Letters of Administration are the equivalent of a Grant of Probate for an intestate estate. They confirm the administrator's authority to deal with the estate, including selling any property. As with a Grant of Probate, Letters of Administration must be obtained before contracts can be exchanged on a property sale. The property can be marketed and offers accepted before the letters are issued, but exchange must wait until the administrator has the legal authority to proceed.

Complications of Intestacy

Intestacy can create complications that do not arise in estates with a valid will. There may be uncertainty about who is entitled to inherit — particularly in blended families, where the deceased had children from a previous relationship. There may be disputes between family members about who should act as administrator. The rules of intestacy may produce an outcome that does not reflect the deceased's wishes or the family's expectations. And the process of establishing who is entitled to inherit can take time, particularly if family members are difficult to trace.

What If the Will Cannot Be Found?

If a will is believed to exist but cannot be found, the estate may still need to be administered as if the deceased died intestate. A thorough search should be made — including checking with the deceased's solicitor, bank, and any will registration services. If the will is found after the estate has been administered, the situation can become very complex. It is important to make every reasonable effort to locate a will before proceeding on the basis of intestacy.

Impact on a Property Sale

For a property sale, the practical impact of intestacy is that the administrator — rather than an executor — has authority to sell. The administrator must obtain Letters of Administration before exchange can take place. The property can be marketed in the meantime, but buyers must be informed that the sale is subject to the grant of letters of administration. In all other respects, the sale process is the same as for a probate sale with a will.

Getting Legal Advice

Intestacy can be significantly more complex than administering an estate with a clear will. If the estate is large, if there are disputes about entitlement, or if the family situation is complicated, professional legal advice is strongly recommended. A solicitor experienced in estate administration can help identify the correct beneficiaries, navigate any disputes, and ensure the estate is administered correctly and in accordance with the law.