When a person dies intestate (without making a will), a series of succession rules are applied in order to establish who is entitled to inherit the estate. But what happens when a person dies without a will and there are no beneficiaries entitled to inherit?
In this short article, I provide a brief general overview of what happens in that scenario in England and Wales, Scotland, and Spain.
England and Wales
Section 46 of the Administration of Estates Act 1925 provides a basic order of priority in which relatives of an intestate person are entitled to inherit:
- Spouse or civil partner
- Issue (the deceased’s children and direct descendants) on statutory trust under section 47.
- Brothers and sisters (on statutory trust under section 47)
- Half brothers and sisters (on statutory trust under section 47)
- Uncles and aunts (on statutory trust under section 47)
- Half uncles and aunts (on statutory trust under section 47)
If there are none of the above-mentioned relatives, the estate is considered bona vacantia, a Latin expression referring to ownerless property. The whole estate passes to the Crown (or to the Duke of Cornwall or the Duchy of Lancaster, if the person died in Cornwall or the Duchy of Lancaster, respectively). The Treasury solicitor, who leads the Government Legal Department (GLD), acts for the Crown to deal with bona vacantia estates.
The Scots intestate succession rules are governed by the Succession (Scotland) Act 1964. After the satisfaction of prior and legal rights (read more about those rights in the ‘Scotland’ section of this article), section 2 of the Act establishes a hierarchy of relatives to inherit:
- Parents and brothers or sisters
- Spouse or civil partner
- Uncles and aunts
- Grandparent’s brothers and sisters
The order of priority above is subject to representation. This means that, if a beneficiary (other than a spouse and civil partner, parent and remoter ancestor) predeceases the deceased leaving issue, such issue will inherit that predeceasing beneficiary’s share instead.
Unlike in England and Wales (where the hierarchy of relatives to inherit stops at half uncles and aunts before the estate is declared bona vacantia), in Scotland the order of priority above goes on indefinitely and it is only limited by practicality. This the estate passes to the Crown as ultimus haeres (ultimate heir). The officer in Scotland who acts for the Crown to deal with ultimus haeres is the Queen’s Lord Treasurer and Remembrancer (QLTR).
The order of priority of relatives to inherit from an intestate estate is established in Artículos 930-955 Código Civil:
- Children (in their own right) and descendants (by representation)
- Parents and ascendants
- Surviving spouse
- Brothers and sisters (and half brothers and sisters), and children of predeceasing brothers and sisters
- Other collateral relatives within the fourth degree of kinship
If there are none of the above-mentioned relatives, the State shall inherit (artículos 956-958 Código Civil). After the winding-up operations, the estate will pass to the Treasury and two thirds of the estate received by the Treasury will be devoted to charitable purposes, unless agreed otherwise by Council of Ministers.
For the State to be able to take possession of the assets and succession rights, a declaración administrativa de herederos is required. This is a procedure whereby the State is declared heir for want of heirs entitled to inherit.
*‘Spain’ here refers to Spain’s derecho común (subject to the Civil Code) only, as opposed to the local laws of specific regions.
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