Total intestacy
What is total intestacy
- Total intestacy occurs when a person dies without leaving a valid will, and none of their estate is disposed of by a will.
- This means the entire estate is distributed according to the rules of intestacy.
What causes total intestacy?
- No will exists at all.
- A will exists but is invalid (e.g. not properly signed or witnessed).
- A will exists but fails to dispose of any property (e.g. due to vague wording or all named beneficiaries predeceasing the testator without alternatives).
- The will is revoked (e.g. by marriage) and no new one is made.
Partial intestacy
What is partial intestacy
- Partial intestacy occurs when a person dies leaving a valid will, but the will does not deal with all of their estate.
- The part that’s not covered by the will is distributed according to the rules of intestacy.
Causes of partial intestacy
- The will fails to mention certain assets (e.g. property acquired after the will was made).
- A beneficiary in the will dies before the testator, and :
- No alternate beneficiary is named.
- The gift is not saved by the statutory “gift over” rules.
- A gift in the will is invalid or fails for some legal reason.
- The will includes a residuary clause, but it fails or is incomplete.
Statutory trust
Property passing outside the estate
Rules of intestacy
Intestacy rules are determined by Part IV of the Administration of Estates Act 1925, as amended by the Inheritance and Trustees’ Powers Act 2014
If the deceased was married or in a civil partnership:
The spouse/civil partner gets:
All the personal possessions.
- The first £322,000 of the estate (statutory legacy as of 2023).
- Half of the remaining estate.
- The children share the other half of the remaining estate equally.
- If any child has died, their share passes to their children (i.e. the deceased’s grandchildren).
- If the deceased does not have any children, the spouse/civil partner gets the entire estate.
Note: Unmarried partners (including long-term cohabitants) do not inherit under intestacy.
If there is no surviving spouse/civil partner, the estate passes in this order:
- Children (equally; grandchildren inherit their parent’s share if the child has died).
- Parents (equally if both alive).
- Full siblings (or their children if deceased).
- Half-siblings (or their children if deceased).
- Grandparents.
- Uncles and aunts (full blood, then half blood).
*Crown (bona vacantia) – if no relatives can be found, the estate goes to the Crown (or Duchy of Cornwall/Lancaster).
People who do not inherit under intestacy:
- Unmarried partners / cohabitants
- Stepchildren (unless adopted)
- Close friends
- In-laws
- Carers
They must apply to court under the Inheritance (Provision for Family and Dependants) Act 1975 if they want to claim.
Statutory saving rule
Doctrine of lapse
If a beneficiary dies before the testator, their gift in the will generally fails (it “lapses”) and returns to the residuary estate
The statutory “saving” rule: Wills Act 1837, Section 33
- This “anti-lapse” provision automatically saves gifts to children, grandchildren, or remoter issue, if:
- The beneficiary is a direct descendant (child, grandchild, etc.), and
- The beneficiary dies before the testator, but leaves children of their own, and
- The will does not say otherwise (i.e. the gift is not expressly conditional on survival).
- If section 33 applies, the gift passes to the beneficiary’s own children — not into residue.
Rule 22 of the Non-Contentious Probate Rules 1987
In the case of intestacy (when there is no valid will), the person who applies for Letters of Administration is usually the closest living relative — based on a strict legal hierarchy.
Who Can Apply for Letters of Administration (Order of Priority):
Under Rule 22 of the Non-Contentious Probate Rules 1987, the following relatives have priority to apply:
1. Spouse or civil partner
2. Children (including adopted children)
3. Grandchildren
4. Parents
5. Siblings (full blood first, then half blood)
6. Nieces and nephews
7. Grandparents
8. Uncles and aunts (then cousins)
9. The Crown (if no relatives)
Key Notes:
• If there are multiple people with equal rights (e.g. two children), they can apply together, or one with the others’ written consent.
• If someone with a higher priority is unwilling or unable to apply, they must formally renounce their right (using a legal form).
• A partner who was not legally married or in a civil partnership cannot apply unless they are also a relative and entitled under the rules.
Statutory legacy
The statutory legacy is a fixed sum of money that a surviving spouse or civil partner is entitled to automatically when someone dies without a valid will (intestacy), if the deceased also leaves children.
How it works (England & Wales):
- If the deceased leaves a spouse/civil partner and children:
- The spouse/civil partner gets the statutory legacy (a set lump sum).
- They also get all the deceased’s personal chattels (household items, furniture, car, etc.).
- Whatever is left after that is split:
- Half to the spouse/civil partner,
- Half equally between the children.
- The statutory legacy amount was increased on 26 July 2023 to £322,000. (It is reviewed every few years to account for inflation.)
- If the deceased leaves a spouse/civil partner but no children, then the spouse/civil partner inherits the entire estate — there is no statutory legacy in that situation.
28 day survivorship rule
there is no general “28-day survivorship rule” written into the intestacy provisions themselves in the Administration of Estates Act 1925.
However, a statutory survivorship requirement of 28 days was introduced later, and now applies by virtue of section 46(2A) of the 1925 Act — as inserted by the Inheritance and Trustees’ Powers Act 2014.
So, while it wasn’t part of the original 1925 intestacy rules, it is now a statutory condition for a spouse or civil partner to inherit under intestacy.
