Intestacy rules

WAE.03 — Intestacy Rules

Intestacy applies where there is no valid will, or a will fails to dispose of all property (partial intestacy). The estate passes under the statutory rules in the Administration of Estates Act 1925 (AEA 1925), s.46, as amended by the Intestates' Estates Act 1952, the Law Reform (Succession) Act 1995 and the Inheritance and Trustees' Powers Act 2014 (ITPA 2014).

The distribution order (after debts, expenses, tax)

Surviving spouse/civil partner + issue: the spouse takes:

• all personal chattels (defined in AEA 1925 s.55(1)(x) as amended by ITPA 2014 — tangible movables, excluding money, business assets, and investments);
• a statutory legacy of £322,000 (current figure, in force from 26 July 2023) plus interest from death; and
• half the residue absolutely. The other half of residue goes to the issue on the statutory trusts (s.47).

Spouse + no issue: the spouse takes the whole estate absolutely (since ITPA 2014 — parents and siblings no longer share).

No spouse: estate passes to the first available class, in this order: issue → parents → brothers and sisters of the whole blood → brothers and sisters of the half blood → grandparents → uncles and aunts of the whole blood → uncles and aunts of the half blood. Failing all of these, the estate goes to the Crown / Duchy of Lancaster / Duchy of Cornwall as bona vacantia.

Note how each class takes: issue, siblings (whole and half blood) and uncles/aunts take on the statutory trusts (so a deceased member's share substitutes down to that member's own issue per stirpes); parents and grandparents take absolutely and equally between themselves — not on the statutory trusts and not per stirpes.

Key tests and traps

• Survivorship: a spouse must survive the deceased by 28 days (AEA 1925 s.46(2A), inserted by the Law Reform (Succession) Act 1995) to inherit; otherwise treated as having predeceased.
• Statutory trusts (s.47): issue must reach 18 or marry/form a civil partnership to take a vested interest; a deceased child's share passes to that child's own issue (per stirpes).
• No common-law spouse: cohabitants take nothing on intestacy regardless of length of relationship — only a claim under the Inheritance (Provision for Family and Dependants) Act 1975. Separated-but-not-divorced spouses still inherit.
• Adopted children inherit from adoptive (not birth) parents; legal parentage governs, not biology.
• The family home is NOT automatically the spouse's — it forms part of residue, though the spouse may require it be appropriated towards their entitlement (Intestates' Estates Act 1952, Sch 2).
• Half-blood and remoter relatives only inherit if no nearer class survives.
• Distinguish personal chattels (spouse takes outright) from money/investments (residue).