Total intestacy

The following Wills & Probate practice note provides comprehensive and up to date legal information covering:

  • Total intestacy
  • The intestacy rules
  • Evolution of the intestacy rules
  • Total intestacy
  • Statutory legacy
  • Spouse or civil partner
  • Chattels
  • Appropriation
  • Statutory trusts for issue
  • Statutory trusts
  • More...

Total intestacy

The intestacy rules

A total intestacy occurs when all of the deceased's property is undisposed of because:

  1. the deceased did not make a Will

  2. the deceased left an invalid Will

  3. the deceased's Will was revoked

  4. the Will does not contain any disposition of the deceased's property, or

  5. the Will, although valid, fails to be effective because, for instance, the sole beneficiary predeceased the deceased

If the deceased died intestate, Parts III and IV of the Administration of Estates Act 1925 (AEA 1925) apply to:

  1. all the movable property of the deceased wherever situated, provided the intestate was domiciled in England and Wales, and

  2. all immovable property of the deceased in England or Wales, whether the deceased was domiciled there or elsewhere

The intestacy rules apply to the residuary estate of the deceased not otherwise disposed of, ie the property that remains after all of the deceased's debts have been paid and any valid legacies effected. The rules apply only to property that could have been disposed of under the deceased's Will had they made one, so, eg do not operate in relation to assets held jointly by the deceased and another person which pass by survivorship.

Evolution of the intestacy rules

Before 1926, intestate succession to realty was governed by the rules of inheritance under which realty passed to the heir-at-law. If there were no surviving sons or

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