The below content strictly relates to Intestacy rules for England and Wales.
When a person dies having written a legally valid Will, their estate must be distributed, and affairs sorted according to the instructions of that Will. If any surviving nieces and nephews are listed as beneficiaries they will inherit according to the Will’s provisions.
However, if a person dies without a legally valid Will, the rules of Intestacy will apply instead. “Intestacy” is the state of a person’s estate when the person dies without having a legally valid Will or other binding declaration in force. The person is said to have “died intestate”.
This means that the rules of Intestacy will also apply if the person dies with an invalid Will or declaration or where a valid Will or declaration is in force but only applies to part of the person’s estate. The remaining estate forms the “intestate estate”.
In this article, we will be examining the inheritance rights of nieces and nephews. Our goal is to demonstrate how these persons can inherit under the rules of Intestacy. To do this, we must first examine what these rules are in England and Wales. Finally, we will apply these rules to determine the exact circumstances in which nieces and nephews can inherit from an intestate estate.
Who can inherit from an Intestate Estate?
If a person dies intestate, only their married or civil partners, as well as a few other close family members can inherit under the rules of intestacy.
Married Partners and Civil Partners.
For a surviving spouse or civil partner to inherit under the rules of intestacy, they must have been legally married or have been in a civil partnership with the deceased at the time of death. Therefore, legally divorced partners, unmarried partners, and terminated civil partnerships cannot inherit under the rules of intestacy.
This means that even if partners are not formally separated, they can still inherit under the rules of intestacy. With that being said, if the partners weren't married or in a civil partnership at the point of death, partners living together are unable to inherit under the rules of intestacy. (Note: it is erroneous to call cohabiting partners “common law partners”, although this is common).
Special rules are applied to marriages or civil partnerships with surviving children, grandchildren, or greatgrandchildren of the deceased. In this case, if the deceased’s estate is valued at over £322,000, the spouse/partner will inherit:
· all of the deceased’s personal property and belongings;
· the first £322,000 of the estate; and
· half of the remaining estate (after the first £322,000 is subtracted).
If there are no children, grandchildren or greatgrandchildren that have survived, their spouse/partner will inherit:
- all of the personal property and belongings of the deceased;
- all of the estate, plus the added interest from the date of death.
What about Jointly Owned Property?
Couples may jointly own property such as a home, bank account, building society accounts, and so on.
Generally, there are two ways a home can be owned jointly; held as beneficial joint tenants or tenants in common:
- Beneficial Joint Tenants: If the spouses/partners are beneficial joint tenants when the death occurred, the surviving spouse/partner will automatically inherit the share of the property of the deceased.
- Tenants in common: If at the time of death, the spouse/partners are tenants in common, the surviving spouse/partner does not automatically inherit the deceased partner’s share of the property.
In the case of joint bank or building society accounts, if one partner dies, the surviving spouse/partner automatically inherits the whole of the money.
Jointly owned property and money inherited by a surviving partner are excluded from the deceased’s estate when it is being valued for distribution. For example, a house inherited by a surviving partner from a beneficial joint tenancy will not be considered part of the deceased estate’s when calculating the inheritance for the children or grandchildren.
Close Family Members.
The children of a person who has died intestate will automatically inherit the deceased’s entire estate in the absence of a surviving spouse or civil partner. The worth of the estate is immaterial in this case. If there are more than two children, the estate would then be divided equally amongst the surviving children.
As previous stated, if the spouse or civil partner survives, they will only inherit the estate if the combined value is worth over £322,000. Their inheritance will constitute the other half of the remaining estate after the first £322,000 is subtracted. Any inheritance is also shared equally among multiple children.
The rule of equal distribution applies even where the deceased parent has children from more than one relationship. The fact that a child’s surviving parent was not married to or a registered civil partner of the deceased at the time of death is immaterial in this case. This also applies to grandchildren and greatgrandchildren when a grandparent or great-grandparent dies intestate.
Adopted children are also entitled to inherit under the rules of Intestacy. This includes stepchildren that were adopted by their step-parent. Any other children besides those that were adopted must be biological to inherit.
Children only receive their inheritance when:
· they reach the age of 18, or
· they marry or form a civil partnership under this age.
Before this, their inheritance is managed by trustees on their behalf.
Grandchildren and Greatgrandchildren.
Grandchildren and greatgrandchildren can only inherit from an intestate estate if:
- The grandparents or parents of the deceased person have died before them, or
- if their parent is alive when they die but dies before reaching the age of 18 without marrying or entering a civil partnership, their children will inherit their estate.
In these cases, the children of the deceased person who dies intestate would also have died. This will transfer the rules of Intestacy that would have applied to the original children to the grandchildren and greatgrandchildren.
The grandchildren or greatgrandchildren will also receive the equal share of the estate that would have been entitled to their deceased parent or grandparent.
Other Close Family Members.
Parents, Siblings, Nieces and Nephews.
All of the above will be entitled to inherit under the rules of Intestacy in the absence of a surviving spouse or civil partner, children, grandchildren, or greatgrandchildren. The worth of the intestate estate is also material when determining the inheritance rights of these other close relatives.
In the case of nieces and nephews, their parent directly related to the deceased person who dies intestate must have also passed away.
In the absence of ALL the family members mentioned above, other relatives may still inherit. Family members who may also have inheritance rights, in this case, include (according to order of priority):
· uncles and aunts (or a cousin if the uncle or aunt are deceased);
· half-uncles and half-aunts (or a half-cousin if the half-uncle or half-aunt are deceased).
What Are the Inheritance Rights of Nieces and Nephews UK?
A niece or nephew of a person who dies intestate will only inherit from their estate if the following circumstances are true:
- The deceased has no surviving spouse or civil partner.
- The deceased has no surviving children, grandchildren, or greatgrandchildren.
- The deceased has no surviving parents
- The deceased has no surviving brother or sister, or the deceased’s sibling who is also the parent of said niece or nephew has already died as well. This also applies to nieces and nephews from half-brothers and half-sisters of the deceased.
Finally, same as every family member, nieces and nephews also have the right to reject or disclaim their inheritance. Here, special rules are applied to determine who can then subsequently inherit.
For more information, we recommend seeking professional legal advice regarding Wills and Inheritance.
The writing of a Will involves the referral to a service that is separate and distinct to those offered by St. James's Place. Wills are not regulated by the Financial Conduct Authority.