The Short Answer
If you die without making a valid Will, you are said to have died intestate. Your estate is distributed under the statutory rules of intestacy, rather than according to assumptions about what you may have wanted.
Those rules provide certainty, but they do not reflect every modern family. An unmarried partner, stepchild, friend or charity may receive nothing, while a relative from whom you were estranged could inherit. The position described here applies to England and Wales; Scotland and Northern Ireland have different succession rules.
What Are the Rules of Intestacy?
The intestacy rules determine who may administer the estate, which relatives inherit and how the estate is divided. They apply where there is no Will and can also apply to assets not effectively disposed of by a valid Will.
A Spouse or Civil Partner but No Children
If the deceased leaves a spouse or civil partner but no children, grandchildren or other direct descendants, the spouse or civil partner will normally inherit the whole intestate estate.
A Spouse or Civil Partner and Children
Where there is a surviving spouse or civil partner and direct descendants, the spouse or civil partner will generally receive:
- the deceased’s personal possessions;
- a fixed statutory legacy, currently £322,000, plus applicable interest; and
- half of the remaining estate.
The other half of the remainder passes to the children on statutory trusts. If a child died before the deceased but left descendants, those descendants may take their parent’s share. The statutory legacy can change and must be checked before publication or reliance.
What If the Couple Had Separated?
Separation alone does not end a marriage or civil partnership. Unless a divorce or dissolution has been legally completed, an estranged spouse or civil partner may still inherit under the intestacy rules. Anyone who separates should review their Will promptly.
Who Inherits If There Is No Spouse or Civil Partner?
The estate will normally pass in the following order:
- children or their descendants;
- parents;
- brothers and sisters of the whole blood, or their descendants;
- brothers and sisters of the half blood, or their descendants;
- grandparents;
- uncles and aunts of the whole blood, or their descendants; and
- uncles and aunts of the half blood, or their descendants.
The detailed result can be complicated where relatives died earlier, family branches are unclear or beneficiaries cannot be located.
Does an Unmarried Partner Inherit?
An unmarried partner has no automatic right to inherit under the intestacy rules, however long the couple lived together. There is no general legal status of “common-law spouse” for inheritance purposes in England and Wales.
In some circumstances, a surviving cohabitant or person maintained by the deceased may be able to seek reasonable financial provision under the Inheritance (Provision for Family and Dependants) Act 1975. A claim is not automatic and strict deadlines can apply, so advice should be obtained promptly and before distribution.
Speak to our Wills and Probate team if your partner died without a Will or you are unsure who is entitled to the estate.
Do Stepchildren Inherit?
A stepchild does not inherit automatically from a stepparent merely because of that relationship. A legally adopted child is generally treated as a child of the adoptive family. A stepchild who was treated as a child of the family or maintained by the deceased may have a possible claim in some circumstances, but that is different from an automatic entitlement.
What Happens to the Home?
It depends on how the property is owned. A home owned as joint tenants will usually pass to the surviving joint owner by survivorship. A share held as tenants in common, or a property held in the deceased’s sole name, will usually form part of the estate and pass under the Will or intestacy rules.
The legal title does not always tell the whole story. Contributions to the purchase price, mortgage or improvements may raise beneficial-ownership issues requiring separate advice.
Who Deals with the Estate?
There is no executor appointed by a Will. The person with the highest legal entitlement will usually apply for a Grant of Letters of Administration and become the administrator. This is commonly the surviving spouse or civil partner, followed by adult children and other relatives in the statutory order.
An administrator may need to identify assets and debts, establish the beneficiaries, deal with tax, apply for the grant, collect or sell assets, prepare estate accounts and distribute correctly. Personal representatives can face personal responsibility if they distribute to the wrong person or before liabilities and claims are resolved.
What If No Entitled Relatives Can Be Found?
If there is no valid Will and no qualifying relative, the estate may pass to the Crown as bona vacantia. This occurs only after the statutory classes of relative have been considered. Different arrangements apply to estates connected with the Duchies of Lancaster and Cornwall.
Can the Family Change the Outcome?
Adult beneficiaries may sometimes redirect an inheritance through a deed of variation or another suitable arrangement. To obtain the intended Inheritance Tax or Capital Gains Tax treatment, a variation will generally need to be completed within two years of death and meet statutory conditions. All affected beneficiaries must agree, and additional problems arise where someone is under 18, lacks capacity or cannot be found.
Why Make a Will?
A properly prepared Will lets you choose beneficiaries and executors, provide for an unmarried partner or stepchildren, appoint guardians, include trusts and consider tax. Marriage, divorce, children, buying property or the death of a chosen executor or beneficiary are all reasons to make or review a Will.
Frequently Asked Questions
Does Everything Automatically Go to a Spouse?
Not always. If there are children or other direct descendants and the intestate estate exceeds the statutory legacy, the spouse or civil partner and descendants may share it.
Can an Unmarried Partner Inherit After Living Together for Years?
Not automatically. A claim may be possible, depending on the facts, but urgent specialist advice should be obtained.
Is Probate Needed If There Is No Will?
The application is normally for Letters of Administration rather than a Grant of Probate. Whether a grant is required depends on the assets and the requirements of each organisation holding them.
Does Intestacy Avoid Inheritance Tax?
No. Tax depends on the estate, exemptions, reliefs and beneficiaries. Intestacy can sometimes create a less tax-efficient result than a planned Will.
Speak to The Legal Practice Solicitors
Our Private Client team can advise on Wills, intestacy, probate applications, estate administration, Inheritance Tax issues and estate disputes. We can provide as much or as little support as the circumstances require.
Contact Jasvir Patel
Consultant Private Client Solicitor
Jasvir advises clients on Wills, Lasting Powers of Attorney, estate planning and probate matters. He works with individuals, families and business owners to put in place practical legal solutions that protect their future and provide peace of mind.
Telephone: 0208 903 7017
Disclaimer
This article is intended for general information only and does not constitute legal advice. Every individual’s circumstances and every estate are different. Specific legal advice should always be obtained before making decisions regarding probate, estate administration, Inheritance Tax or the duties of an executor.
