When someone dies without leaving a valid Will, they are said to have died “intestate”. Their estate does not necessarily pass to the people they were closest to or would have chosen to benefit. Instead, it is divided according to a fixed legal framework known as the rules of intestacy.

For some families, those rules may produce a relatively straightforward result. For others, particularly unmarried couples, blended families and those with financially dependent relatives, the outcome can be very different from what the person might have intended.

Dying without a Will can also leave loved ones with uncertainty over who should administer the estate and make the process of dealing with property, accounts and other assets more involved.

What are the rules of intestacy?

The rules of intestacy determine who is entitled to inherit a person’s money, property and possessions when there is no valid Will.

They consider legal and family relationships rather than the closeness of those relationships. They do not take account of informal promises, personal preferences or whether the deceased was estranged from a relative.

The rules discussed in this article apply to England and Wales. Different arrangements apply in Scotland and Northern Ireland.

What does a spouse or civil partner inherit?

A surviving spouse or civil partner has priority under the intestacy rules, although whether they inherit the whole estate depends on whether the deceased also had children.

If there are no children, the spouse or civil partner will usually inherit the entire estate.

Where there are children and the estate exceeds £322,000, the surviving spouse or civil partner is entitled to:

• the deceased’s personal possessions;
• the first £322,000 of the estate; and
• half of anything remaining above that amount.

The other half of the remaining estate passes to the deceased’s children in equal shares. If a child has already died but left children of their own, those descendants may inherit the share their parent would have received.

If the estate is worth £322,000 or less, the surviving spouse or civil partner will usually inherit the whole estate.

A couple who had separated but had not legally ended their marriage or civil partnership may still inherit from one another under the intestacy rules. A former spouse or civil partner will not inherit once a divorce or dissolution has been finalised.

Do unmarried partners inherit if there is no Will?

An unmarried partner does not automatically inherit under the intestacy rules, regardless of how long the couple lived together.

There is no general legal status of “common-law spouse” in England and Wales. A person could have shared a home, finances and family life with their partner for many years but receive nothing from the part of the estate governed by the intestacy rules.

The ownership of particular assets will still matter. For example, some jointly owned property and accounts may pass directly to the surviving owner, depending on how they are held. Certain pensions, life policies and other benefits may also be dealt with under separate arrangements.

However, this should not be confused with an automatic right to inherit the estate. An unmarried partner may otherwise need to consider bringing a claim for reasonable financial provision. Court proceedings can involve additional cost, delay and uncertainty, and the outcome is not guaranteed.

Making a valid Will is therefore particularly important for unmarried couples who want to provide for one another.

What do children inherit under the intestacy rules?

If there is no surviving spouse or civil partner, the deceased’s children will usually inherit the estate in equal shares.

Biological and legally adopted children are included. Stepchildren do not automatically inherit unless they have been legally adopted, even where the deceased treated them as their own or had supported them for many years.

Where a child is under 18, their inheritance will usually be held for them until they reach that age. A Will can allow a parent to decide whether a different age or trust arrangement would be more suitable and appoint trustees to manage the inheritance.

A Will can also be used to appoint guardians for children under 18. Without a valid appointment, decisions about their care may be left for family members and, where necessary, the court to resolve.

Who inherits if there is no spouse, civil partner or child?

Where the deceased was not married or in a civil partnership and had no children or other direct descendants, the estate passes through a set order of relatives.

Depending on who is alive, this may include:

• parents;
• brothers and sisters, or their descendants;
• half-brothers and half-sisters, or their descendants;
• grandparents;
• aunts and uncles, or their descendants; and
• half-aunts and half-uncles, or their descendants.

This can result in an estate passing to distant or estranged relatives. Friends, carers, charities and other people who were important to the deceased do not inherit under the intestacy rules simply because of the role they played in that person’s life.

If no entitled relatives can be found, the estate may pass to the Crown as bona vacantia, meaning ownerless property.

Who administers an estate when there is no Will?

A Will normally appoints one or more executors to deal with the estate. When there is no Will, there is no named executor.

The person with the strongest legal entitlement will usually need to apply to become the administrator. This is normally the surviving spouse or civil partner, followed by adult children and then other close relatives in the order set by law.

The legal authority issued to an administrator is called a Grant of Letters of Administration. This performs a similar function to a Grant of Probate and may be needed before the administrator can access, transfer or sell certain assets.

The administrator may need to:

• establish the value of the estate;
• identify and protect the deceased’s assets;
• investigate debts and liabilities;
• complete any necessary inheritance tax reporting;
• apply for the Grant of Letters of Administration;
• collect or sell assets;
• pay outstanding taxes, debts and administration expenses; and
• distribute the remaining estate to the correct beneficiaries.

Banks will normally restrict access to accounts held solely in the deceased’s name once they have been notified of the death, although their requirements and arrangements for releasing limited funds can vary. This may create short-term financial difficulties where a partner or dependant relied on those accounts.

Administrators must follow the intestacy rules even if family members believe that the deceased would have wanted a different outcome.

Can intestacy still apply if there is a Will?

Intestacy does not arise only where no Will exists.

A “partial intestacy” can occur when a Will is valid but does not dispose of the whole estate. This might happen because the drafting does not deal with a particular asset or because a gift fails and the Will does not explain what should happen instead.

The part of the estate that has not been dealt with may then pass under the intestacy rules. Careful drafting and regular reviews can reduce this risk.

Can the outcome be changed after someone dies?

In some circumstances, a person entitled to inherit may redirect some or all of their entitlement through a deed of variation.

A variation cannot simply be imposed on the family, and each beneficiary can generally redirect only their own entitlement. Additional issues can arise where children, protected beneficiaries or trusts are involved.

Someone who was not adequately provided for may also be able to bring a claim against the estate. Strict time limits can apply, so early legal advice is important.

These options may help in certain cases, but they are not a substitute for leaving clear and legally effective instructions during your lifetime.

Making sure your wishes are followed

The intestacy rules provide a default outcome. They do not consider which relationships mattered most to you, who depends on you, whether you want to support a charity or how you would like particular possessions to be distributed.

A properly drafted Will allows you to make those decisions yourself. It can identify the people and organisations you want to benefit, appoint suitable executors, make arrangements for children and provide greater clarity for those dealing with your affairs.

It is also important to review an existing Will following changes such as marriage, divorce, the birth of a child, a new relationship or a significant change in your assets.

stevensdrake solicitors advises individuals and families on Wills, intestacy, probate and estate administration. Please contact our Wills, Trusts and Probate team if you would like to make or review a Will, or need support administering the estate of someone who died without one.