Intestacy and Next of Kin (Part 1)
01 March 2023
There tends to be a degree of mystery among practitioners in dealing with estates where there is no obvious or close survivor to a deceased who dies intestate. It need not be the case. Section 70 and 71 of the Succession Act deals with figuring out who is the next of kin. This applies where there are none of the following surviving:-
- spouse/civil partner
- brother or sister
- children of deceased brother or sister.
If none of these persons survive the deceased, as of the date of death, then the estate is distributed to the next of kin in equal shares.
So, how you locate the next person, the next of kin? The rule, which is seto out in s. 71(2) has certain elements.
The rule is that to calculate the nearest next of kin, you take certain steps. It states that grandparents or other ancestors are calculated as being related to the deceased by “counting upwards from the intestate”. Other relatives then are ascertained by
counting upwards from the intestate to the nearest ancestor common to the intestate and that relative and then downward from that ancestor to the relative.
We will look at this by the diagram below. From this diagram it can be seen that an uncle is further from a deceased than a grandparent.
First, you must go up the line (ie to ancestors). So naturally if there is none of the above list, the nearest next of kin is a grandparent. The next rule states that you count back down the line to the nearest surviving relative. So if someone is survived by a grandparent, you also see, did that grandparent have any other children?
So if you look at the diagram below. C is the grandparent of A and D is the uncle of A. D is the brother of father B and child of grandparent C. However C is two degrees away from A while D is three degrees away. Therefore C inherits.
The natural inclination is to consider that one’s uncle is as close to you in relationship as your grandfather. The layman may say to themselves that “well, my uncle is my father’s brother and my grandfather is my father’s father and so, as they appear to be one step away from my father, they are in the same degree of relationship to me.” That might work for common-day logic, but that is not how section 71(2) operates.
More on this next week.
Hope this helps and if you have any probate, will drafting or CAT queries, please reach out through the solicitor query section of the website.