What happens if there is no will and a relation dies before the deceased?


In the previous blog post we looked at the issue of what happens when beneficiaries die before a deceased in cases where a deceased has made a will. In this article we are looking at situation where a person dies before the deceased but the relative has made no will.

In this post, we refer to the person who has died as the deceased.  And the people who survive that person as the beneficiaries.  In will jargon, a person who dies without a will is said to die intestate.

If a person dies intestate there are certain rules that apply with respect to the distribution of their estate.  Where a deceased dies, married but with no children then the entire of the estate passes to their spouse. If the deceased dies intestate with a spouse and children surviving, then two thirds of their estate goes to their spouse and one third passes to their children in equal shares. Finally, if a person dies a widow or widower with children and has no will then his/her estate will pass to their children in equal shares. These are the basic rules.

What we are looking at in this post, is the question of, what happens if a person dies before the deceased and the deceased died intestate.

First, we will take the example of a widower who has died, but one of his or her children dies before them.  What happens in that case?

So for example, Mary is a widow and has 3 children Olivia, Andrew and Karen. Karen died before her mother but she had children (Jack and Oisin). When Mary dies her estate is divided into three shares. One share to Olivia, one third share to Andrew and the remaining third share divided equally between Karen’s children Jack and Oisin.  It should be noted that Karen’s does not pass in accordance with Karen’s estate but rather passes directly to Karen’s children.   This is known as the per stirpes rule and is contained in section 67 of Succession Act 1964.

In the above scenario if Karen had no children and died before her mother Mary, then in that case Mary’s estate would be divided in two ways between Andrew and Olivia equally.

There are also rules that cater for a situation where a person dies a bachelor or spinster with no children and no parents and is only survived by brothers and sisters.  What happens in this case if a brother or sister dies before the deceased?  If a brother or sister predeceases the deceased then in that case the share that was due to that brother or sister will normally lapse and will be passed to the other brothers and sisters.

So if John died a bachelor and was survived by Pat, Frank and Susan, with another sister Shelia having died before John, then John’s estate is divided three ways in equal shares between Pat, Frank and Susan.  However, there is a refinement of this rule under s. 69 of the Succession Act.

This section provides that if a person dies without having a will but survived by a brother or sister but one of those brother or sisters has predeceased the deceased with children surviving then in that case the share will not lapse but will pass to such children in equal shares.

So taking our above example, if Shelia had children (say Daniel and Seamus), then Shelia’s share would not have lapsed but would have passed to Daniel and Seamus.  So the estate would be divided four ways, one quarter to each of Pat, Frank and Susan and one eight to each of Daniel and Seamus.

The rules relating to intestacy are complex and each case should be looked at on its own.  Specific advice should always be obtained in every case.


We hope you have found this information of use and please contact Colm Kelly for any further queries.