If someone dies without a valid Will, the intestacy rules decide who inherits their estate. Many people assume their partner or family will automatically receive everything. In fact, the rules follow a fixed order of relatives and take no account of personal wishes, so some of the people closest to you may receive nothing. This guide explains how the intestacy rules work in England and Wales, who they leave out, and how a Will gives you control.
Scotland and Northern Ireland have their own separate rules, so this guide does not apply there.
What does dying intestate mean?
A person who dies without a valid Will is said to have died “intestate”. The intestacy rules are set out mainly in the Administration of Estates Act 1925, as amended, most recently by the Inheritance and Trustees’ Powers Act 2014.
Total intestacy means there is no valid Will at all. For example, the person may never have made one, the Will may not have been signed and witnessed correctly, or it may have been revoked. Marriage or civil partnership revokes an earlier Will unless it was made in contemplation of marriage to a named person. So someone can be intestate without realising it.
Partial intestacy happens when a valid Will does not deal with the whole estate. For example, the Will might not say who receives the remainder if the main beneficiary has died. In that case, the intestacy rules apply only to the part the Will does not cover.
Common myths about intestacy
- “My spouse gets everything.” Not always. A surviving spouse or civil partner takes everything only if there are no children or other descendants, or the estate is small.
- “We’re common-law partners.” There is no such thing as “common-law marriage” in England and Wales. Unmarried partners inherit nothing under the intestacy rules, however long they have lived together.
- “My stepchildren will be treated as mine.” Stepchildren who were not legally adopted have no right to inherit, even if you raised them from an early age.
Which assets do the intestacy rules cover?
The rules apply only to assets that could have been left by Will. They do not usually cover:
- property or bank accounts owned as joint tenants, which pass automatically to the surviving owner
- assets held in trust
- pension death benefits and life insurance paid out under a nomination or held in trust
- some assets abroad, which may be governed by the law of another country
By contrast, a share of property owned as tenants in common does pass under the intestacy rules. Many couples are not sure which way they own their home, and this can be checked at HM Land Registry.
Who inherits under the intestacy rules?
The outcome depends on which relatives survive and the size of the estate. A spouse or civil partner must survive by 28 days to inherit.
Spouse or civil partner and children
The surviving spouse or civil partner receives:
- all the personal possessions (known as personal chattels)
- the first £322,000 of the estate, called the statutory legacy, plus interest from the date of death until it is paid
- half of anything above £322,000, absolutely
The other half of anything above £322,000 is shared equally between the children. If the estate is worth £322,000 or less, the spouse or civil partner inherits everything. The statutory legacy was £250,000 from February 2009, rose to £270,000 in February 2020, and has been £322,000 since 26 July 2023.
For example, imagine a man who dies without a Will, leaving his wife, one son and an estate of £422,000 (not counting personal possessions). His wife receives his possessions, the first £322,000 and half of the remaining £100,000. So she receives £372,000 plus the possessions, and his son receives £50,000.
If the estate is mostly the family home, the surviving spouse may find it hard to pay out the children’s share. This can put pressure on the family to sell, and it can be especially difficult in second marriages.
Spouse or civil partner but no children
If there are no children or other descendants, the surviving spouse or civil partner inherits the whole estate. Parents and siblings receive nothing.
Children but no spouse or civil partner
The children share the whole estate equally. Adopted children are treated in the same way as birth children, whether or not their parents were married. However, stepchildren do not inherit unless they were legally adopted.
Grandchildren and children under 18
If a child has died before the person who died intestate, that child’s own children take their parent’s share between them. In other words, grandchildren step into their parent’s place.
Any share for someone under 18 is held on trust until they reach 18, or marry or form a civil partnership before then. The administrators hold and manage that money, not any public authority. Then, at 18, the young person receives their share outright, whatever their maturity or needs.
No spouse, civil partner or descendants
The estate then passes in this order, with each group inheriting only if there is no one in the group before it:
- parents
- brothers and sisters of the whole blood, or their children
- half-brothers and half-sisters, or their children
- grandparents
- uncles and aunts of the whole blood, or their children
- half-uncles and half-aunts, or their children
For example, if one parent survives, they inherit everything and brothers and sisters receive nothing.
Who cannot inherit under the intestacy rules?
The following people receive nothing under the intestacy rules, however close they were:
- unmarried partners, even after many years together
- stepchildren who were not adopted, and step-parents
- friends, godchildren and carers
- charities the person supported
- children who were adopted into another family
Claims by unmarried partners and others
Some people can claim against an estate under the Inheritance (Provision for Family and Dependants) Act 1975. An unmarried partner who lived with the deceased as a couple for the two years immediately before the death can claim on that basis alone. Alternatively, someone can claim if the deceased was maintaining them. A claim must normally be issued within six months of the grant of letters of administration. However, claims are uncertain, stressful and can be costly. If you need advice about a claim, we can refer you to an appropriate professional.
What happens if there are no relatives?
If no eligible relatives can be found, the estate passes to the Crown as “bona vacantia”, meaning ownerless property. Estates in most of England and Wales are dealt with by the Government Legal Department’s Bona Vacantia division. The Crown can make discretionary grants to people the deceased might have been expected to provide for, such as a long-term partner or carer, but nobody has a right to one.
Who deals with the estate?
Without a Will, there is no executor. Instead, someone applies for a grant of letters of administration and becomes the “administrator”. The law sets a priority order, starting with the surviving spouse or civil partner, then the children. An unmarried partner cannot normally apply.
Administrators have the same duties as executors. They collect the assets, pay debts and tax, and share out the estate under the intestacy rules. They can be personally liable for mistakes. Tracing distant relatives or disagreements about who should act can also add delay. A.D.E. Wills does not handle probate or estate administration, but we can refer you to an appropriate professional.
Redirecting an inheritance
A person who inherits under the intestacy rules can redirect their share within two years of the death by a deed of variation, or can disclaim it. There are rules about who then receives a disclaimed share, and tax consequences may apply. So anyone considering this should take advice, and we can refer you to an appropriate professional.
Assets abroad
If someone owns property abroad, that country’s own rules may decide who inherits it. A lawyer in the relevant country can advise on assets held there.
Why a Will avoids the intestacy rules
The intestacy rules are fixed and do not reflect every family. A Will lets you:
- choose who inherits and in what shares
- provide for an unmarried partner, stepchildren, friends or charities
- appoint executors you trust
- appoint guardians for children under 18
- decide at what age children inherit, and who manages their money until then
- set out what happens if your first-choice beneficiaries die before you
Inheritance Tax still applies to an intestate estate. A Will can reflect the current rules, such as gifts to a spouse or to charity, but we do not give tax advice. You can read about Inheritance Tax on GOV.UK, and check the rules using the GOV.UK intestacy tool.
Make your Will with A.D.E. Wills
We are professional Will writers, and Edward Richings is a Full Member of the Society of Will Writers. If you would like your estate to pass to the people you choose, Edward can help you write a clear Will for a fixed fee, shown on our Wills Pricing page. Your initial chat is free, with no obligation, and can be online or over the phone. Call 01865 507174 or email info@adewills.co.uk, or read more about our Will writing service.
