Intestacy rules - can second cousins benefit

Trusts Discussion
1

We have been asked to advise the cousins of a deceased estate on distribution under the intestacy rules. The deceased died intestate with no spouse, children, parents, grandparents, brothers or sisters. The deceased had 7 cousins, 2 which are surviving and the other 5 cousins deceased. From the deceased cousins 3 have left children behind. (second cousins)

Do these second cousins take their deceased parents share?

I have been unable to find a definitive answer and I have also spoken to HMRC and they have been unable to confirm.

I would be grateful for any assistance on this matter.

shazad butt
rudlings wakelam

2

I think they take as issue of full blood siblings, per stripes. So two get 1/7 each and the other sevenths are divided by the number of issue of each deceased cousin. I once got down to 1/167ths!

Iain Cameron
Star Legal

3

The relationship you’ve described is that of a first cousin once removed. Provided their parent (first cousin) pre-deceased the deceased, they would take an equal share of their parent’s entitlement.

Second cousins are not entitled to inherit under the rules of intestacy in England and Wales.

Our family tree verification service can assist in situations like these.

Philip Turvey
Anglia Research

4

It’s not as straightforward as taking the cousins; you have to go up one generation and look at the parents of the deceased and their brothers and sisters. If there are two siblings, then those two would take half each: then their children would split their share, ending up with seven but not necessarily with one-seventh shares; only then do you start considering the position of the children of those cousins who have dies. That’s my understanding of the provisions.

Julian Cohen, Solicitor

5

Descendants of grandparents per stirpes includes cousins once, twice or more removed. I.E. The children or remoter issue of aunts and uncles. At the risk of stating the obvious, but a mistake I have seen before is to allocate 50/50 maternal/paternal descendant lines when it is equal to all qualifying descendant lines.

John Cartlidge
Campion Solicitors

6

I am not sure we have to go up to grandparents. My reading of the original post was of seven cousins, who I take to be the issue of full blood siblings of the deceased? The issue of full blood siblings take in preference to the issue of uncles and aunts (assuming grandparents are dead).

I agree with Philip that the children of cousins are first cousins, once removed.

Iain Cameron
Star Legal

7

Grandparents, should they be alive, would take priority over cousins. The practical reality is that grandparents are usually deceased in these situations. However, there are occasional exceptions and the application of the relevant law cannot simply be ignored. To clear this up:

Order of Entitlement under the Intestacy Rules

The intestacy rules are contained in the Administration of Estates Act 1925 (AEA 1925).

Property within an estate (or part of an estate) which has not been disposed of by a Will is held on what is called the ‘statutory trusts for sale’ and will pass according to the intestacy rules, which lay down a strict order of entitlement.

Section 33 AEA 1925 places a statutory trust for sale over all the property in respect of which the deceased died intestate. The estate is divided between the deceased’s family under the rules set out in section 46 AEA 1925.

Section 46 Administration of Estate Act 1925 lists the categories of beneficiaries in order of priority. The general principle is that the estate is shared by the relatives in the highest category, excluding those in a lower category from benefiting.

If the deceased has no surviving spouse, the order of beneficial entitlement is:-

• issue on the statutory trusts, but if none, then to

• parents absolutely (and equally if both are alive), but if none, then to

• brothers and sisters of the whole blood (i.e. the children of the same parents as the deceased) on the statutory trusts, but if none, then to

• brothers and sisters of the half blood (i.e. those who share one parent with the deceased) or their descendants on the statutory trusts, but if none, then to

• grandparents absolutely and equally if more than one, but if none, then to

• uncles and aunts of the whole blood (i.e. brothers and sisters of the whole blood of one of the parents of the deceased) on the statutory trusts, but if none, then to

• uncles and aunts of the half blood (i.e. those with one parent in common with one of the parents of the deceased) on the statutory trusts, but if none, then to

• the Crown (as bona vacantia).

The wording of section 46 is such that each category must be considered in the order listed above and only if there is no one in a particular category is it necessary to consider the next category. Put another way, a surviving member of any of the above classes excludes all members of the lower classes.

Whenever issue take on intestacy they take their entitlement on the statutory trusts: section 46(1) AEA 1925. Statutory trusts are defined by section 47(1)(i) and operate on the principle of distribution of the estate among the issue per stirpes (‘through the stems’). This means that the estate is distributed through the stems or branches of the family, each of which is entitled to an equal share. The number of branches is determined by the number of children that survived the intestate or who predeceased the intestate but left issue surviving him. It is accordingly necessary to consider the descendants of individuals in each category where the statutory trusts apply.

Philip Turvey
Anglia Research

8

Whilst I am I general agreement with the order of priority set out in Philip Turvey’s response, other than in respect of the issue, parents, or grandparents of the deceased the other categories should include reference to the issue (per stirpes) of any of the class that have died before the deceased.

Paul Saunders

9

Possibly one should bear in mind the Inheritance and Trustees Powers Act
2014 which came into effect on 1st October 2014 and which amended the
act of 1925.

Brian Phillips

10

One thing that no one has mentioned is if any of those people die after the testator then any entitlement will pass via their will and not pass per stirpes to any living issue of those people. So any entitlement is paid to the executors of their estate for distribution according to their will.

David Griffiths
A2Z Probate Research Ltd

11

Not sure whether it is appropriate to revive old threads but can post a new thread if required.

I have a similar situation and would appreciate input from others on the forum. There is a gift to be distributed because it is a partial intestacy (the intended recipient of the gift predeceased by a few days only and no substitution in place).

There was no surviving spouse, brothers or sisters. The deceased’s parents and grand parents predeceased.

The deceased had aunts and uncles who all predeceased.

One aunt (genetic) and uncle (married to genetic aunt) lets call them A1 & U1 had two children who are cousins of the deceased. Lets call them C1 & C2.

C1 did not survive the deceased and had 4 children who are still alive.

C2 survived the deceased by a few days.

My question is :The share of the gift running down the branch (I have created a ‘family tree’) below the deceased’s aunt & uncle, how is it to be applied?
a) the entirety of it go to the estate of C2, OR
b) the estate of C2 get 50% of the share and the other 50% of the share is divided 4 ways between the children of C1 ?

Reading the above discussion I think it may be a) but I could be wrong?

And does the existence of a surviving cousin at the date of death disqualify any living children of other cousins who have predeceased.

Thanks in advance for any assistance

12

I believe that s.47(1)(i) Administration of Estates Act 1925, modified as required for the circumstances by s.47(3) results in the estate being shared as to a half to C2 and a half to the issue of C1 in equal shares.

Short answer – I go with option b

Paul Saunders FCIB TEP

Independent Trust Consultant

Providing support and advice to fellow professionals

13

Hi there - for what it’s worth to add - I’m with Paul on this, it’s option b).

Louise Levene
Finders International

14

Hi,

Yes, option B it is. The existence of a surviving cousin at the date of death does not disqualify any living children of other cousins who may have predeceased.

Regards,

Philip Turvey
www.angliaresearch.co.uk

15

It is indeed option B.

The share(s) that pass to uncle(s) and aunt(s) are held on the statutory trusts, so the division between their descendants is per stirpes.

Cliona O‘Tuama
Solicitor

16

Good Afternoon All,

I have a similar query on intestacy and would really appreciate your thoughts please. The estate we are dealing with is passing to aunts/uncles of the whole blood and their issue on intestacy.

Again all aunts and uncles have predeceased the intestate and we’re comfortable with the calculation method of division of the estate.

One line of the family tree consists of predeceased aunt (A) , who had four children, three of whom are living at the intestate’s death and will of course inherit their relevant share in the estate. A’s fourth child, a son (B) also predeceased the intestate. B left three children, two of whom are living and will inherit a share. His third child, a son (C) predeceased the intestate and predeceased B, his own father. C left a daughter living at the date of death of the intestate (D). My understanding is that D will still inherit what would have been her father C’s share (subject to her attaining 18 years or marrying before).

It is purely the fact that C predeceased the intestate and also his own father that has led to some differing opinions here, and so any assistance would be much appreciated. C was of age when he died.

Many thanks
Lucy Pellatt