Many people assume that if they die without a will, everything will simply pass to their husband, wife, partner or children.
Sometimes the result may be close to what they expected. In other cases, the legal outcome can be very different.
In England and Wales, dying without a valid will is known as dying intestate. Instead of following your personal wishes, your estate is distributed under a fixed legal order called the intestacy rules.
Those rules do not consider who you were closest to, who supported you, or who you may have promised to help. They look primarily at whether you were married or in a civil partnership and which relatives survived you.
What does dying intestate mean?
A person dies intestate when they die without leaving a valid will that deals with their estate.
Intestacy can arise because:
- no will was ever made;
- an earlier will was revoked, for example by marriage or civil partnership in many circumstances;
- the will was not signed and witnessed correctly;
- the original will cannot be found and its status cannot be established; or
- the will only deals with part of the estate.
If a valid will deals with some assets but not the whole estate, the remaining property may pass under the intestacy rules. This is called a partial intestacy.
The practical starting point is therefore not simply whether a document called a will exists. It is whether there is a valid will that deals effectively with the relevant estate.
What forms part of the intestate estate?
The intestacy rules apply to the assets that fall into the deceased person’s estate and are not validly disposed of in another way.
This may include:
- money in sole bank or building society accounts;
- a solely owned home or a share held as tenants in common;
- investments and personal possessions;
- business interests, subject to their ownership arrangements; and
- other assets owned personally at the date of death.
Debts, funeral expenses, tax and estate-administration costs normally need to be dealt with before the remaining estate is distributed.
Not every asset necessarily passes under a will or the intestacy rules. For example, an interest in a property held as joint tenants will usually pass automatically to the surviving joint owner. Some pensions, life policies, trusts and nominated benefits may also be dealt with under their own rules.
This is why the value of the intestate estate may not be the same as the total value of everything connected with the person who died.
Who inherits when there is no will?
The answer depends on the deceased person’s family circumstances. The following is a general overview of the current rules in England and Wales.
If there is a spouse or civil partner but no children
If the deceased person was married or in a civil partnership and had no children or other direct descendants, the surviving spouse or civil partner will normally inherit the whole intestate estate.
This applies to the legal spouse or civil partner. It does not apply to an unmarried partner, regardless of how long the couple lived together.
If there is a spouse or civil partner and children
Where the deceased leaves both a spouse or civil partner and children or other direct descendants, the estate is divided under a statutory formula.
For deaths from 26 July 2023, the surviving spouse or civil partner receives:
- the personal chattels, broadly meaning ordinary personal possessions subject to the statutory definition;
- the first £322,000 of the net intestate estate, known as the statutory legacy; and
- half of anything remaining above that amount.
The other half of the remaining estate passes to the deceased person’s children or, where relevant, their descendants.
The £322,000 figure is set by law and can change. The current amount should therefore be checked when the estate is being administered.
A simple example
Suppose a person dies leaving a spouse, two children and a net intestate estate worth £522,000.
- The spouse receives the personal chattels.
- The spouse receives the first £322,000.
- The remaining £200,000 is divided into two halves.
- The spouse receives £100,000.
- The children share the other £100,000 equally.
This is a simplified illustration. Property passing automatically to a joint owner, debts, tax, lifetime arrangements and other factors can change the practical outcome.
If there is no spouse or civil partner but there are children
The children normally share the intestate estate equally.
If a child died before the parent but left children of their own, those descendants may take the share their parent would have received. The detail depends on the family circumstances.
Legally adopted children have inheritance rights through their adoptive family. A stepchild does not automatically inherit under the intestacy rules unless they were legally adopted by the deceased.
If there is no spouse, civil partner or child
The estate passes to relatives in a fixed order. Broadly, this moves through:
- parents;
- full brothers and sisters, or their descendants;
- half brothers and sisters, or their descendants;
- grandparents;
- full uncles and aunts, or their descendants; and
- half uncles and aunts, or their descendants.
A relative in a higher category normally prevents relatives in lower categories from inheriting.
If no entitled relatives can be found
If there is no valid will and no relatives entitled under the intestacy rules, the estate can pass to the Crown as bona vacantia, meaning ownerless property.
Does an unmarried partner inherit automatically?
No. Under the current intestacy rules in England and Wales, a cohabiting partner does not automatically inherit simply because the couple lived together, owned a home together or had children.
The expression “common-law husband” or “common-law wife” does not create the same inheritance rights as marriage or civil partnership.
A surviving partner may still receive assets that pass outside the estate, such as a jointly owned asset that passes by survivorship. In some circumstances, they may also be able to consider a claim against the estate. That is a separate legal process, can be complex and requires specialist legal advice.
A valid will is the clearest way to record what you want an unmarried partner to receive from your estate.
Do stepchildren inherit automatically?
Not usually.
Stepchildren can be an important part of a family for many years, but they are not treated as the deceased person’s children under the intestacy rules unless they were legally adopted by that person.
This can be particularly important in blended families and second marriages. A person who wants stepchildren to benefit should make that intention clear in a valid will.
Our guide to mirror wills for couples explains why blended-family arrangements may require more thought than a simple matching-will structure.
What if a married couple were separated?
Separation alone does not end a marriage or civil partnership.
If a person dies intestate while they are still legally married or in a civil partnership, the separated spouse or civil partner may retain rights under the intestacy rules. A divorce or dissolution changes the position, but living apart by itself is not the same as legally ending the relationship.
Anyone who separates should review their will and wider arrangements promptly rather than assuming the separation has changed their inheritance position.
What happens to the family home?
The answer depends partly on how the property is owned.
Property owned as joint tenants
Under joint ownership rules, the deceased owner’s interest will usually pass automatically to the surviving joint owner. It does not normally pass under the will or intestacy rules.
Property owned as tenants in common
The deceased person’s separate share forms part of their estate and will pass under a valid will or, if there is no effective will, under the intestacy rules.
Property owned in one person’s sole name
A solely owned property forms part of that person’s estate. Who ultimately receives it will depend on the intestacy rules, although the property may need to be sold to pay liabilities or divide the estate.
Unmarried couples should not assume that living in a property together means the survivor will automatically inherit it. The legal title, any declaration of trust, mortgage arrangements and wider estate all matter.
What happens when a child inherits before the age of 18?
A child under 18 does not usually receive and control an intestate inheritance immediately.
Their share is normally held under statutory trust arrangements until they become entitled at 18. Money may be applied for their maintenance, education or benefit where the rules allow, but the intestacy rules do not let a parent choose a later inheritance age such as 21 or 25.
A properly prepared will can provide more considered trust arrangements where that is appropriate, as well as appointing suitable trustees to manage the inheritance.
Who deals with the estate if there is no executor?
An executor receives authority from a will. If there is no valid will, there is no executor appointed by the deceased.
Instead, the person with the highest legal entitlement may apply to become the estate’s administrator. If the application is successful, they receive a grant called letters of administration.
The person entitled to apply is usually the surviving spouse or civil partner, followed by adult children and then other relatives in the relevant order.
The administrator must:
- identify and value the estate;
- deal with tax and liabilities;
- collect or transfer the assets;
- keep appropriate records; and
- distribute the estate according to the intestacy rules.
The deceased has no opportunity to choose who carries out this role. Making a will allows you to appoint executors you trust and name replacements if an original executor cannot act.
Can the intestacy rules be challenged or changed?
The intestacy rules apply automatically, but that does not mean every estate is entirely straightforward.
In limited circumstances, certain family members or dependants may be able to apply to the court for financial provision. Adult beneficiaries may also sometimes agree to alter how an inheritance is distributed.
These are separate legal and tax matters. They should not be treated as a substitute for making a valid will, and specialist advice should be obtained before any steps are taken.
Why making a will gives you more control
A valid will allows you to make choices that the intestacy rules cannot make for you.
Depending on your circumstances, your will can:
- choose the people or charities that should benefit;
- provide for an unmarried partner or stepchildren;
- appoint executors and replacement executors;
- appoint guardians for children under 18 where appropriate;
- set suitable trust arrangements for younger or vulnerable beneficiaries;
- leave specific gifts or personal possessions;
- address blended-family circumstances; and
- form part of your wider estate planning.
Making a will does not mean every part of the estate will be simple, and it does not replace tax, property or regulated financial advice where those are needed. It does, however, provide a clear record of your wishes and the people you want to deal with your estate.
When should you review or make a will?
It is sensible to make or review a will when:
- you buy or sell a property;
- you marry, form a civil partnership, separate or divorce;
- you begin living with a partner;
- children, grandchildren or stepchildren join the family;
- an executor or beneficiary dies or can no longer act;
- your finances change substantially;
- you enter retirement; or
- your wishes change.
Our guide to reviewing your will after retirement explains the main points to check as your circumstances develop.
Making a will in Poole, Bournemouth or Christchurch
Brooks Wills helps individuals and couples across Poole, Bournemouth, Christchurch, wider Dorset and West Hampshire put clear, properly considered wills in place.
We explain the process in plain English, take time to understand your family and property arrangements, and help you identify the practical next step.
Brooks Wills is a member of the Institute of Professional Willwriters and the Society of Will Writers.
Call, message or book a consultation to discuss making a will or reviewing an existing one.
Simplifying legacies, securing tomorrow.
This article provides general information for England and Wales. It is not legal, tax or financial advice. Intestacy and estate-administration outcomes depend on individual circumstances, and the law may change.
Frequently asked questions
Does my spouse automatically inherit everything if I die without a will?
Not always. If you leave a spouse or civil partner but no children or other direct descendants, they will normally inherit the whole intestate estate. If you also leave children and the estate exceeds the statutory legacy, the remaining estate is divided under the intestacy formula.
Will my unmarried partner inherit if we have lived together for many years?
Not automatically under the current intestacy rules in England and Wales. Jointly owned assets may pass in another way, and a claim may sometimes be possible, but cohabitation itself does not provide the same automatic inheritance rights as marriage or civil partnership.
Do stepchildren inherit when there is no will?
Stepchildren do not normally inherit under the intestacy rules unless they were legally adopted by the deceased. A valid will can make specific provision for them.
Who applies for probate if there is no will?
The person with the highest legal entitlement may apply to become the administrator. They will generally receive letters of administration rather than a grant of probate issued to an executor.
What happens if my children are under 18?
Their inheritance is normally held under statutory trust arrangements until they become entitled at 18. A will can provide tailored trust arrangements and appoint trustees where appropriate.
Does everything I own pass under the intestacy rules?
Not necessarily. Some jointly owned property, trust assets, pensions, life policies or nominated benefits may pass outside the intestate estate. Ownership and scheme rules need to be checked individually.
