Intestacy

What happens if no Will has been made

Intestacy is the situation that arises when someone dies without having made a Will.

When someone dies in this situation, their property (the estate) must be shared out according to certain rules. These are called the rules of intestacy. A person who dies without leaving a Will is described as ‘dying intestate’.

When such a situation arises, the Rules of Intestacy apply and it will be necessary to appoint an administrator to handle the administration. To allow the administrator to manage the estate, a Grant of Representation must be applied for from the Probate Registry of the High Court. Once this has been obtained, this becomes the authority for the administration of the estate to begin.

The administrator is appointed according to the following hierarchy:

  • surviving spouse or registered civil partner (not common-law spouses or merely cohabiting partners)
  • children
  • parents
  • siblings
  • grandparents
  • uncles/aunts

Thereafter, the Rules of Intestacy will determine the beneficiaries of the estate. A wife or partner, parents, brothers and sisters and nieces and nephews of the intestate person may be entitled to a share of an estate but this will depend on a number of circumstances.

The Net Estate (all the property belonging to the person who has died, less everything they owe) will be divided in a strict order of priority.

If there is a surviving spouse or registered civil partner and no children, grandchildren etc or parents of the deceased still living, then all the estate will pass to the surviving spouse or civil partner.

If there is a surviving married or civil partner and the person who died has children, then the estate will be divided between the children and the surviving partner.

If there is no surviving married or civil partner and the person who died has children, then the estate will go 100% to the children.

Thereafter the Estate is divided according to the same hierarchy used to decide who will be the administrator.

However, if you owned your property as 'joint tenants', the rules of intestacy do not apply. The surviving co-owner inherits the deceased person's share. If you own a property as Tenants in Common, then your share of the property passes through your estate and would be subject to the Rules of Intestacy. You may need to check the title deeds to find out whether you owned the property as 'joint tenants' or 'tenants in common'.

Some groups of people do not have the right to inherit under the Rules on Intestacy including unmarried   partners, relations by marriage including step-children and close friends.

These rules are often wrongly applied, either through misunderstanding of their nuances or misinterpreting the law or unfamiliarity with finer details of the family tree. It is important to avoid such errors in order to abide by the law, as the Administrator may be personally liable for any mistakes. There are specialist firms who can help you trace missing beneficiaries and advise you how an Intestate Estate should be handled.

However, even if you don’t inherit under the rules of intestacy, and you think that you have a right to share in an estate, you may be able to apply to court for financial provision from the estate.

If there is no one entitled to claim an estate, then all of the property passes to the Crown. This situation is called "Bona Vacantia" which literally means vacant goods. The Treasury Solicitor will administer these estates.

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