The statutory shares
The core rules are short. A surviving spouse or civil partner with no children takes the whole estate. A surviving spouse with children takes two thirds, and the children share one third equally between them. Children surviving alone share the whole estate equally, with the issue of a predeceased child taking that child's share. Beyond spouse and issue, the estate passes to parents, then brothers and sisters, then more remote next of kin in the statutory order. Cohabitants, however long-established, take nothing under the intestacy rules; a qualified cohabitant's remedy is a court application for provision from the estate, which is time-limited and far weaker than a spouse's position.
Who administers
Entitlement to extract the grant follows entitlement to the estate: the spouse first, then children, and so on. Where several people share equal entitlement, several are equally entitled to the grant, which is workable in harmonious families and combustible in divided ones; disputes about who should administer an intestate estate are among the most common contested probate applications, and the court can resolve them, including by passing over those entitled in favour of a neutral administrator where circumstances require. Administrators, unlike executors, may also face bonding requirements as a condition of the grant.
The farm intestacy problem
Intestacy is at its most destructive on a farm. The statute divides value in fixed shares; a farm does not divide. Where a farming son or daughter has worked the land for years on the strength of an understood succession that was never written down, intestacy gives them the same fractional share as siblings in Sydney or Boston, and the holding may have to be sold to pay everyone out. The legal responses, family arrangements varying the statutory shares, claims based on promises and work (the doctrine of proprietary estoppel), purchase of siblings' shares funded sensibly, are all available, but every one of them is harder, slower and more expensive than the will that was never made. Specialist tax advice should be obtained on any family arrangement redistributing an intestate estate.
Partial intestacy and defective wills
Intestacy also arrives in fragments: a will that disposes of some assets but not others, a residuary gift that fails because the beneficiary predeceased, a will invalid for want of proper execution. In each case the intestacy rules govern what the will does not reach, and the estate is administered under both regimes at once. Home-made wills are the recurring cause, and reviewing a doubtful will early, before positions harden, is always worth the modest cost.
Frequently asked questions
My partner and I were not married. Do I inherit anything on intestacy?
Not under the intestacy rules. A qualified cohabitant may apply to court for provision from the estate within a strict time limit, but the position is far weaker than a spouse's and advice should be taken immediately.
Who is entitled to take out the grant where there is no will?
Those entitled to the estate, in the statutory order: spouse or civil partner first, then children, then remoter kin. Where equal entitlements conflict, the dispute can be resolved by agreement or by the court.
Do stepchildren inherit on intestacy?
Stepchildren who were not adopted do not take under the intestacy rules, though other remedies can arise in particular circumstances. Adopted children inherit from their adoptive parents exactly as biological children do.
To discuss a matter in confidence, contact Richard O'Shea at Mary Molloy Solicitors, 2 Rose Inn Street, Kilkenny. Arrange a consultation. This page is general information, not legal advice.