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What happens if a relative dies intestate?

Update February 2020. According to Which? two in five homeowners don’t have a will, which means rules of intestacy will apply should they die. And that could mean property going to unintended recipients.

The death of a relative is always a difficult emotional time for the surviving family members and friends, but if the deceased died without having made a valid Last Will and Testament, additional stresses can be placed upon the family and friends when it’s time to deal with the disbursal of the deceased’s estate. Probate claims management firm Going Legal explains what UK law has to say.

The law of intestacy

Within the UK legal profession, the situation whereby somebody who, having lawful power to do so, has not made a valid will, or has made one that is invalid in law, is generally referred to as “Intestacy”.

Circumstances can also exist whereby the deceased made a valid will which involves only a segment of the estate. In such scenarios, the remaining portion of the estate is referred to as the “intestate estate”.

In order to disburse the deceased’s estate to its rightful beneficiaries it will undergo “administration” by one or more administrators appointed by the Probate Division of the High Court of Justice or the local District Probate Registry, rather than the usual probate process.

The administrator(s) will typically be relatives or family friends of the deceased, but can in certain circumstances be an otherwise unconnected party such as a creditor of the deceased (provided that they establish a bond with a minimum of two sureties attesting that their own debt will not receive preferential treatment over those of other creditors).

In England and Wales, the body of law that determines who is lawfully entitled to inherit the estate of the deceased under the rules of inheritance is commonly referred to as “Intestacy law” or the “law of descent and distribution”. Its prevailing intention is to make fair provision for a surviving husband, wife, civil partner or other relative in the event of the death of a person upon whom they were dependent.

Who inherits?

In general, if the deceased’s estate is valued below a certain threshold (£450,000 if there are no children or £250,000 if there are children, at the time of writing), the estate of the deceased will be disbursed in the following descending order of priority:

  1. Any surviving husband, wife or civil partner
  2. Any children and their descendants
  3. Any surviving parents
  4. Any surviving siblings and their descendants
  5. Any surviving grandparents
  6. Any siblings of the deceased’s parents and their descendants

This list is not exhaustive. In cases where none of the above relatives can be traced, this order of priority will be widened to more remote degrees of kinship until a suitable beneficiary is identified. If no identifiable heirs can be found then the deceased’s estate is generally reverted to the Crown (or to the Duchies of Cornwall or Lancaster if the deceased was a resident of either county prior to their death). This reversion process is known as “escheating”.

If the estate is valued above the prevailing threshold then any surviving husband, wife or civil partner will receive any property due to pass to them under survivorship rules or the terms of a trust, a sum fixed in law known as a Statutory Legacy (£450,000 if there are no children or £250,000 if there are children, at the time of writing) and a lifelong interest in a percentage of any remaining assets of the estate.

Any surviving children (or more distant relatives if there are no children) are entitled to a share of the estate. This will usually be disbursed to them in two halves – the first immediately and the remaining half upon the death of the surviving husband, wife or civil partner.

The law in Scotland broadly follows that of England and Wales, but with some minor variations such as that all possible blood relatives are eligible to qualify for a mandatory inheritance.

Can you challenge the disbursal?

If you stand to receive nothing or an amount you believe to be insufficient, unfair or unjust then you may have grounds to bring a claim. Should you decide to do so and should they agree that your claim has merit and decide to take your case, your claim will typically be fought by a probate solicitor.

Legal costs can be very expensive, so before you proceed you should carefully consider how you will fund your claim. While it is possible to obtain funding under an insurance policy, this scenario is not particularly common and Community Legal Service funding (formerly known as Legal Aid) or other government assistance is rarely available. Consequently, a popular funding method is a “no win, no fee” arrangement which can be agreed either with your solicitor directly or via a third party claim handler.

Under a “no win, no fee” arrangement your solicitor’s fees will be dependent upon the outcome of your case. Generally, if your claim is unsuccessful, you will not have to pay. However it is important that you thoroughly understand the terms of any arrangement you enter into because, even if your claim is successful, there can be exceptions affecting the amount you receive, or even leaving you with a bill to pay. For example, you may be required to pay your own expenses (e.g. court fees) and, if your claim is unsuccessful, your opponent’s costs.

“No-win, no-cost” agreements are now available that will ensure you won’t be required to pay any money whatsoever at the outset of your claim, whilst it is progressing, or should your claim be unsuccessful.

Time limits apply to bringing a claim so if you decide to proceed you should not unnecessarily delay.

Of course, any litigation shouldn’t be undertaken without thorough consideration. It can be expensive, will probably delay the administration of the estate and may result in the deceased’s last wishes being ignored.

Probate claims management firm Going Legal Limited has been established for over 20 years, successfully recovering many millions of pounds for clients. It welcomes complex and difficult cases and specialises in contesting a will on a No-Win, No-Fee basis.

The opinions expressed are those of the author and are not held by Going Legal Limited unless specifically stated. The material is for general information only and does not constitute legal or any other form of advice. You should not rely on this information to make (or refrain from making) any decisions. Always obtain independent, professional advice for your own particular situation.

This article was published in April 2015.

If you found this article useful you may like to read

Why are wills and probate so important?

A guide to inheritance tax

And you can download our finances guide on setting up power of attorney

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