When someone passes away without a legally valid Last Will and Testament, the government considers them to have died “intestate“. In a situation of Intestacy, the government steps in to determine how to distribute the estate. This can lead to a range of unintended consequences. Those closest to the deceased might not inherit anything. In fact, in some cases, the entire estate can go to distant relatives or even the Crown.
What is Intestacy?
Intestacy occurs when a person dies without leaving behind a legally valid Will. This may happen because they never created a Will or because their existing Will is outdated or invalid. When this happens, the government distributes the estate under a legal framework known as the Rules of Intestacy.
These rules do not account for personal wishes, emotional bonds or financial need. Instead, they follow a strict structure based solely on blood relationships and martial status.
Who Inherits When There Is No Will?
In England, the rules of intestacy prioritise family members in a fixed order:
1. Married or in a Civil Partnership with Children
The surviving partner inherits the first £322,000, all personal belongings and half of the remaining estate. The government splits the other half equally among the children. If a child has died, their children (the deceased’s grandchildren) take their share.
2. Married or in a Civil Partnership without Children
The entire estate goes to the surviving spouse or civil partner.
3. Unmarried with Children
The government divides the estate equally between the children. If a child has died, their children inherit in their place.
4. Unmarried without Children
The government distributes the estate to relatives in this order: Parents, Full siblings, half-siblings, Grandparents, Uncles and aunts and then cousins.
5. No Surviving Relatives
If no eligible relatives exist, the estate passes to the Crown, a process known as “bona vacantia“.
Who Cannot Inherit Under Intestacy?
Some people, regardless of their relationship to the deceased, have no automatic right to inherit under rules of intestacy. These include:
- Unmarried partners
- Stepchildren (unless legally adopted)
- Friends
- Carers
- In-laws or relations by marriage
This is why you must create a Will. Without one, the government may leave out people you care about entirely.
What is Partial Intestacy?
Partial Intestacy occurs when a will does not account for the entirety of an estate. New assets might enter the estate after writing a Will, or a named beneficiary might die without a designated replacement. In such cases, the government distributes the portion not covered by the Will according to the rules of intestacy.
What Happens to Property?
The government treats joint property ownership differently depending on the type of ownership:
| Joint Tenants | The surviving co-owner automatically inherits the deceased’s share, regardless of a Will or the rules of intestacy |
| Tenants in Common | The deceased’s share becomes part of the estate and is distributed according to a Will or the rules of intestacy |
This distinction is particularly important for unmarried couples who may assume they have inheritance rights that, legally, they do not.
Administering an Intestate Estate
If there is no Will, someone must take responsibility for handling the estate. This person is will henceforth be the Administrator and is typically the closest living relative to the deceased.
The Administrator must:
- Value the estate accurately
- Apply for a grant of representation (Letters of Administration)
- Settle any debts and outstanding bills
- Pay Inheritance Tax if required
- Distribute the remaining assets according to the rules of intestacy
Administering an estate can be time-consuming and complex, especially when involving property or multiple beneficiaries.
What About Children Under 18?
Children under 18 cannot legally manage an inheritance. If they inherit under intestacy, their share is held in trust until they turn 18.
If both parents die intestate, the court must appoint a legal guardian. No one has an automatic right, but close family members can apply. The court always considers the child’s best interests before making a decision.
Can You Challenge the Rules of Intestacy?
Yes, you can challenge the rules of intestacy.
The Inheritance (Provision for Family and Dependants) Act 1975 allows certain people to apply to the court for financial provision if they were left out unfairly.
Eligible applicants include:
- Spouses and civil partners
- Former spouses and civil partners
- Cohabiting partners (living together for at least two years)
- Children (biological or legally adopted)
- Stepchildren or others financially supported by the deceased
How Can You Avoid Intestacy?
The only way to avoid intestacy is to create a valid Will. A will should:
- Specify who inherits your estate
- Appoint guardians for your children
- Include your funeral wishes
- Name executors to carry out your instructions
You should review your Will after major life changes such as marriage, divorce or the birth of a child. Keeping it updated ensures it reflects your current wishes.
What is a Deed of Variation?
A Deed of Variation allows beneficiaries to change how the estate is distributed. This must be agreed upon by all affected parties and completed within two years of the death.
Reasons for making a Deed of Variation include:
- Including someone not recognised under the rules of intestacy
- Ensuring a fairer distribution
- Reducing Inheritance Tax liability
Do You Need a Will?
Our experienced team is here to help you protect your legacy with expert will writing and estate planning advice. Contact us today to speak with a specialist and discover how our personalised solutions can give you and your loved ones peace of mind.
01452 698 989 | office@willguardian.co.uk | Facebook
This article is for general informational purposes only and does not constitute legal or financial advice. While we aim to keep our content up to date and accurate, UK laws and regulations are subject to change. Please speak to a professional for advice tailored to your individual circumstances. Will Guardian accepts no responsibility for any issues arising from reliance on the information provided.