Many people still die without having made a Will.  When this happens the Intestacy Rules apply and a Grant of Letters of Administration may need to be applied for. An intestate Estate is governed by the Administration of Estates Act 1925.

The person or people who apply for the Grant are referred to as Administrators and as there is no Will to prove their authority to deal with the Estate, their authority to act comes from the Grant itself.  The order of priority to act as Administrator is set out in r22 Non-Contentious Probate Rules 1987.  The order of priority to act is very strict and once a person has been found with the authority, there is no need to go further down the line.  The spouse or civil partner is the first authorised person to act; under the Civil Partnership Act 2004 a civil partner has the same authority as a surviving spouse.  Next in line would be children of the deceased and their issue, and then parents.

The order of entitlement to an intestate Estate is the same as the order of entitlement to apply for the Grant of Letters of Administration and is set out by s46 Administration of Estates Act 1925.  If there is only a surviving spouse or civil partner the administration is fairly simple with the whole Estate passing to them by survivorship.  However, in the situation where a deceased has children involved, this may not be the case.

The surviving spouse/civil partner inherits the first £250,000 as a statutory legacy with the remainder being split to half: in a life interest for the spouse/civil partner and then to the children on their death and the other half to the children immediately.

If there is a surviving spouse/civil partner with no children but parents and brothers and sisters,   the surviving spouse/civil partner would inherit the first £450,000 as a statutory legacy, with the remaining half being equally split between the spouse/civil partner and the parents.  If the parents have predeceased, this half would be split between the brothers and sisters.  If theonly relatives are children living at the date of death, the entire Estate would be divided equally between them.

S.46(2A) Administration of Estates Act 1925 provides that if a surviving spouse or civil partner dies within a period of 28 days of the deceased, they are treated as having died before the intestate.

As you can see from the strict rules that have to be followed, it is strongly advised to make a Will to allow the testator to set out their own wishes, and ensure that he or she avoids the intestacy rules.

Publisher: Graham & Rosen Solicitors