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Administration of Estates Act 1925

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Part IVE+W Distribution of Residuary Estate

Modifications etc. (not altering text)

45 Abolition of descent to heir, curtesy, dower and escheat.E+W

(1)With regard to the real estate and personal inheritance of every person dying after the commencement of this Act, there shall be abolished—

(a)All existing modes rules and canons of descent, and of devolution by special occupancy or otherwise, of real estate, or of a personal inheritance, whether operating by the general law or by the custom of gavelkind or borough english or by any other custom of any county, locality, or manor, or otherwise howsoever; and

(b)Tenancy by the curtesy and every other estate and interest of a husband in real estate as to which his wife dies intestate, whether arising under the general law or by custom or otherwise; and

(c)Dower and freebench and every other estate and interest of a wife in real estate as to which her husband dies intestate, whether arising under the general law or by custom or otherwise: Provided that where a right (if any) to freebench or other like right has attached before the commencement of this Act which cannot be barred by a testamentary or other disposition made by the husband, such right shall, unless released, remain in force as an equitable interest; and

(d)Escheat to the Crown or the Duchy of Lancaster or the Duke of Cornwall or to a mesne lord for want of heirs.

(2)Nothing in this section affects the descent or devolution of an entailed interest.

46 Succession to real and personal estate on intestacy.E+W

(1)The residuary estate of an intestate shall be distributed in the manner or be held on the trusts mentioned in this section, namely:—

[F1(i)If the intestate leaves a [F2spouse or civil partner], then in accordance with the following table:

[F3TABLE

The amount of the fixed net sum referred to in paragraph (B) of case (2) of this Table is to be determined in accordance with Schedule 1A.]

(1) If the intestate leaves no issue:the residuary estate shall be held in trust for the surviving spouse or civil partner absolutely.
(2) If the intestate leaves issue:

(A)the surviving spouse or civil partner shall take the personal chattels absolutely;

(B)the residuary estate of the intestate (other than the personal chattels) shall stand charged with the payment of a fixed net sum, free of death duties and costs, to the surviving spouse or civil partner, together with simple interest on it from the date of the death at the rate provided for by subsection (1A) until paid or appropriated; and

(C)subject to providing for the sum and interest referred to in paragraph (B), the residuary estate (other than the personal chattels) shall be held—(a) as to one half, in trust for the surviving spouse or civil partner absolutely, and(b) as to the other half, on the statutory trusts for the issue of the intestate.

(ii)If the intestate leaves issue but no [F2spouse or civil partner], the residuary estate of the intestate shall be held on the statutory trusts for the issue of the intestate;

(iii)If the intestate leaves [F4no [F2spouse or civil partner] and] no issue but both parents, then, F5..., the residuary estate of the intestate shall be held in trust for the father and mother in equal shares absolutely;

(iv)If the intestate leaves [F4no [F2spouse or civil partner] and] no issue but one parent, then, F5..., the residuary estate of the intestate shall be held in trust for the surviving father or mother absolutely;

(v)If the intestate leaves no [F6[F2spouse or civil partner] and no issue and no] parent, then F7..., the residuary estate of the intestate shall be held in trust for the following persons living at the death of the intestate, and in the following order and manner, namely:—

  • First, on the statutory trusts for the brothers and sisters of the whole blood of the intestate; but if no person takes an absolutely vested interest under such trusts, then

  • Secondly, on the statutory trusts for the brothers and sisters of the half blood of the intestate; but if no person takes an absolutely vested interest under such trusts; then

  • Thirdly, for the grandparents of the intestate and, if more than one survive the intestate, in equal shares; but if there is no member of this class; then

  • Fourthly, on the statutory trusts for the uncles and aunts of the intestate (being brothers or sisters of the whole blood of a parent of the intestate); but if no person takes an absolutely vested interest under such trusts; then

  • Fifthly, on the statutory trusts for the uncles and aunts of the intestate (being brothers or sisters of the half blood of a parent of the intestate); F7...;

(vi)In default of any person taking an absolute interest under the foregoing provisions, the residuary estate of the intestate shall belong to the Crown or to the Duchy of Lancaster or to the Duke of Cornwall for the time being, as the case may be, as bona vacantia, and in lieu of any right to escheat.

The Crown or the said Duchy or the said Duke may (without prejudice to the powers reserved by section nine of the M1Civil List Act, 1910, or any other powers), out of the whole or any part of the property devolving on them respectively, provide, in accordance with the existing practice, for dependants, whether kindred or not, of the intestate, and other persons for whom the intestate might reasonably have been expected to make provision.

[F8(1A)The interest rate referred to in paragraph (B) of case (2) of the Table in subsection (1)(i) is the Bank of England rate that had effect at the end of the day on which the intestate died.]

(2)A husband and wife shall for all purposes of distribution or division under the foregoing provisions of this section be treated as two persons.

[F9(2A)Where the intestate’s [F2spouse or civil partner] survived the intestate but died before the end of the period of 28 days beginning with the day on which the intestate died, this section shall have effect as respects the intestate as if the [F2spouse or civil partner] had not survived the intestate.]

F10(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F11(4)The interest payable on [F12the fixed net sum] payable to a surviving [F2spouse or civil partner] shall be primarily payable out of income. ]

[F13(5) In subsection (1A) “Bank of England rate” means—

(a)the rate announced by the Monetary Policy Committee of the Bank of England as the official bank rate, or

(b)where an order under section 19 of the Bank of England Act 1998 (reserve powers) is in force, any equivalent rate determined by the Treasury under that section.

(6)The Lord Chancellor may by order made by statutory instrument amend the definition of “Bank of England rate” in subsection (5) (but this subsection does not affect the generality of subsection (7)(b)).

(7)The Lord Chancellor may by order made by statutory instrument—

(a)amend subsection (1A) so as to substitute a different interest rate (however specified or identified) for the interest rate for the time being provided for by that subsection;

(b)make any amendments of, or repeals in, this section that may be consequential on or incidental to any amendment made by virtue of paragraph (a).

(8)A statutory instrument containing an order under subsection (6) is subject to annulment pursuant to a resolution of either House of Parliament.

(9)A statutory instrument containing an order under subsection (7) may not be made unless a draft of the instrument has been laid before and approved by a resolution of each House of Parliament.]]

Textual Amendments

F1 S. 46(1)(i) substituted by Intestates' Estates Act 1952 (c. 64), s. 1(2)

F9 S. 46(2A) inserted (8.11.1995 with effect as respects an intestate dying on or after 1.1.1996) by 1995 c. 41, s. 1(1)(3)

Modifications etc. (not altering text)

C4 S. 46 set out as amended by Intestates' Estates Act 1952 (c. 64) in Sch. 1 to that Act

Marginal Citations

[F1446ADisclaimer or forfeiture on intestacyE+W

(1)This section applies where a person—

(a)is entitled in accordance with section 46 to an interest in the residuary estate of an intestate but disclaims it, or

(b)would have been so entitled had the person not been precluded by the forfeiture rule from acquiring it.

(2)The person is to be treated for the purposes of this Part as having died immediately before the intestate.

(3)But in a case within subsection (1)(b), subsection (2) does not affect the power conferred by section 2 of the Forfeiture Act 1982 (power of court to modify the forfeiture rule).

(4)In this section “forfeiture rule” has the same meaning as in the Forfeiture Act 1982.]

47 Statutory trusts in favour of issue and other classes of relatives of intestate.E+W

(1)Where under this Part of this Act the residuary estate of an intestate, or any part thereof, is directed to be held on the statutory trusts for the issue of the intestate, the same shall be held upon the following trusts, namely:—

(i)In trust, in equal shares if more than one, for all or any the children or child of the intestate, living at the death of the intestate, who attain the age of [F15eighteen years] or marry under that age[F16or form a civil partnership under that age], and for all or any of the issue living at the death of the intestate who attain the age of [F15eighteen years] or marry[F17, or form a civil partnership,] under that age of any child of the intestate who predeceases the intestate, such issue to take through all degrees, according to their stocks, in equal shares if more than one, the share which their parent would have taken if living at the death of the intestate, and so that[F18(subject to section 46A)] no issue shall take whose parent is living at the death of the intestate and so capable of taking;

(ii)The statutory power of advancement, and the statutory provisions which relate to maintenance and accumulation of surplus income, shall apply, but when an infant marries[F19, or forms a civil partnership,] such infant shall be entitled to give valid receipts for the income of the infant’s share or interest;

F20(iii). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(iv)The personal representatives may permit any infant contingently interested to have the use and enjoyment of any personal chattels in such manner and subject to such conditions (if any) as the personal representatives may consider reasonable, and without being liable to account for any consequential loss.

(2)If the trusts in favour of the issue of the intestate fail by reason of no child or other issue attaining an absolutely vested interest—

(a)the residuary estate of the intestate and the income thereof and all statutory accumulations, if any, of the income thereof, or so much thereof as may not have been paid or applied under any power affecting the same, shall go, devolve and be held under the provisions of this Part of this Act as if the intestate had died without leaving issue living at the death of the intestate;

(b)references in this Part of this Act to the intestate “leaving no issue” shall be construed as “leaving no issue who attain an absolutely vested interest”;

(c)references in this Part of this Act to the intestate “leaving issue” or “leaving a child or other issue” shall be construed as “leaving issue who attain an absolutely vested interest.

(3)Where under this Part of this Act the residuary estate of an intestate or any part thereof is directed to be held on the statutory trusts for any class of relatives of the intestate, other than issue of the intestate, the same shall be held on trusts corresponding to the statutory trusts for the issue of the intestate (other than the provision for bringing any money or property into account) as if such trusts (other than as aforesaid) were repeated with the substitution of references to the members or member of that class for references to the children or child of the intestate.

[F21(4)References in paragraph (i) of subsection (1) of the last foregoing section to the intestate leaving, or not leaving, a member of the class consisting of brothers or sisters of the whole blood of the intestate and issue of brothers or sisters of the whole blood of the intestate shall be construed as references to the intestate leaving, or not leaving, a member of that class who attains an absolutely vested interest.]

[F22(4A)Subsections (2) and (4) are subject to section 46A.]

[F23(4B)Subsections (4C) and (4D) apply if a beneficiary under the statutory trusts—

(a)fails to attain an absolutely vested interest because the beneficiary dies without having reached 18 and without having married or formed a civil partnership, and

(b)dies leaving issue.

(4C)The beneficiary is to be treated for the purposes of this Part as having died immediately before the intestate.

(4D)The residuary estate (together with the income from it and any statutory accumulations of income from it) or so much of it as has not been paid or applied under a power affecting it is to devolve accordingly.]

(5). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F24

F2547A Right of surviving spouse to have own life interest redeemed.E+W

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

48 Powers of personal representative in respect of interests of surviving spouse.E+W

(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F26

(2)The personal representatives may raise—

(a)[F27the fixed net sum] or any part thereof and the interest thereon payable to the surviving [F28spouse or civil partner] of the intestate on the security of the whole or any part of the residuary estate of the intestate (other than the personal chattels), so far as that estate may be sufficient for the purpose or the said sum and interest may not have been satisfied by an appropriation under the statutory power available in that behalf; F29...

F29(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

and F30... the amount, if any, properly required for the payment of the costs of the transaction.

Textual Amendments

Modifications etc. (not altering text)

C7S. 48 set out as amended by Intestates' Estates Act 1952 (c. 64) in Sch. 1 to that Act

49 Application to cases of partial intestacy.E+W

(1)Where any person dies leaving a will effectively disposing of part of his property, this Part of this Act shall have effect as respects the part of his property not so disposed of subject to the provisions contained in the will and subject to the following modifications:—

F31(aa). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F31(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(b)The personal representative shall, subject to his rights and powers for the purposes of administration, be a trustee for the persons entitled under this Part of this Act in respect of the part of the estate not expressly disposed of unless it appears by the will that the personal representative is intended to take such part beneficially.

F31( 2 ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F31( 3 ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F32(4). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F31S. 49(1)(aa)(a)(2)(3) repealed (8.11.1995 with effect as mentioned in the note to the Schedule of the repealing Act) by 1995 c. 41, ss. 1(2)(b)(3), 5, Sch.

Modifications etc. (not altering text)

C8S. 49 set out as amended by Intestates' Estates Act 1952 (c. 64) in Sch. 1 to that Act

50 Construction of documents.E+W

(1)References to any Statutes of Distribution in an instrument inter vivos made or in a will coming into operation after the commencement of this Act, shall be construed as references to this Part of this Act; and references in such an instrument or will to statutory next of kin shall be construed, unless the context otherwise requires, as referring to the persons who would take beneficially on an intestacy under the foregoing provisions of this Part of this Act.

(2)Trusts declared in an instrument inter vivos made, or in a will coming into operation, before the commencement of this Act by reference to the Statutes of Distribution, shall, unless the contrary thereby appears, be construed as referring to the enactments (other than the M2Intestates’ Estates Act, 1890) relating to the distribution of effects of intestates which were in force immediately before the commencement of this Act.

[F33(3)In subsection (1) of this section the reference to this Part of this Act, or the foregoing provisions of this Part of this Act, shall in relation to an instrument inter vivos made, or a will or codicil coming into operation, after the coming into force of section 18 of the Family Law Reform Act 1987 (but not in relation to instruments inter vivos made or wills or codicils coming into operation earlier) be construed as including references to that section.]

Textual Amendments

Modifications etc. (not altering text)

C9S. 50(1) modified by Intestates' Estates Act 1952 (c. 64), s. 6(2) and Family Law Reform Act 1969 (c. 46), s. 14(6).

S. 50(1) modified (8.11.1995) by 1995 c. 41, s. 1(4)

Marginal Citations

51 Savings.E+W

(1)Nothing in this Part of this Act affects the right of any person to take beneficially, by purchase, as heir either general or special.

(2)The foregoing provisions of this Part of this Act do not apply to any beneficial interest in real estate (not including chattels real) to which a [F34person of unsound mind] or defective living and of full age at the commencement of this Act, and unable, by reason of his incapacity, to make a will, who thereafter dies intestate in respect of such interest without having recovered his testamentary capacity, was entitled at his death, and any such beneficial interest (not being an interest ceasing on his death), shall, without prejudice to any will of the deceased, devolve in accordance with the general law in force before the commencement of this Act applicable to freehold land, and that law shall, notwithstanding any repeal, apply to the case.

For the purposes of this subsection, a [F34person of unsound mind] or defective who dies intestate as respects any beneficial interest in real estate shall not be deemed to have recovered his testamentary capacity unless his . . . F35 receiver has been discharged.

(3)Where an infant dies after the commencement of this Act without having been married[F36or having formed a civil partnership,] [F37and without issue], and independently of this sub-section he would, at his death, have been equitably entitled under a [F38trust or] settlement (including a will) to a vested estate in fee simple or absolute interest in freehold land, or in any property F39. . . to devolve therewith or as freehold land, such infant shall be deemed to have had [F40a life interest], and the [F38trust or] settlement shall be construed accordingly.

F41(4). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F37Words in s. 51(3) inserted (1.1.1997) by 1996 c. 47, s. 25(1), Sch. 3 para. 6(4)(a) (with ss. 24(2), 25(4)); S.I. 1996/2974, art. 2

F38Words in s. 51(3) inserted (1.1.1997) by 1996 c. 47, s. 25(1), Sch. 3 para. 6(4)(b) (with ss. 24(2), 25(4)); S.I. 1996/2974, art. 2

F39Word in s. 51(3) repealed (1.1.1997) by 1996 c. 47, s. 25(2), Sch. 4 (with ss. 24(2), 25(4)); S.I. 1996/2974, art. 2

F40Words in s. 51(3) substituted (1.1.1997) by 1996 c. 47, s. 25(1), Sch. 3 para. 6(4)(c) (with ss. 24(2), 25(4)); S.I. 1996/2974, art. 2

F41S. 51(4) repealed (1.1.1997) by 1996 c. 47, s. 25(2), Sch. 4 (with ss. 24(2), 25(4)); S.I. 1996/2974, art. 2

52 Interpretation of Part IV.E+W

In this Part of this Act “real and personal estate” means every beneficial interest (including rights of entry and reverter) of the intestate in real and personal estate which (otherwise than in right of a power of appointment or of the testamentary power conferred by statute to dispose of entailed interests) he could, if of full age and capacity, have disposed of by his will [F42and references (however expressed) to any relationship between two persons shall be construed in accordance with section 1 of the Family Law Reform Act 1987]

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