Intestacy rules: what happens when someone dies without a will?

When someone dies without leaving a valid will, they die intestate. Their estate passes not according to their wishes, but according to a fixed legal order called the intestacy rules. Those rules do not consider the relationships that mattered, the promises that were made, or the arrangements that seemed obvious. They simply apply.

The consequences can be significant: an unmarried partner may receive nothing, stepchildren may be excluded entirely, or a family home may pass to relatives the deceased had little contact with.

The process of administering the estate, without the clarity a will provides, is often considerably more complicated.

This article explains how the intestacy rules work in England and Wales, who is entitled to administer and inherit, and what happens in the scenarios that commonly catch families off guard.

What does dying intestate mean?

Intestacy is the legal term for dying without a valid will. It applies in two situations:

• Full intestacy: no will exists at all, or the will that exists is legally invalid.
• Partial intestacy: a valid will exists, but does not deal with the whole estate. Assets not covered by the will pass under the intestacy rules.

A will can be invalid for several reasons – it was not signed and witnessed correctly, the person lacked mental capacity when they signed it, or they were unduly influenced. If a will is challenged and set aside, the estate falls back to intestacy as if no will existed.

Whether the intestacy is full or partial, a close relative will usually need to apply to the Probate Registry for a Grant of Letters of Administration before they can deal with the estate. This is the equivalent of a Grant of Probate for an estate with a will: it gives the administrator the formal legal authority to collect assets, pay debts and distribute what remains.

Who inherits under the intestacy rules?

The intestacy rules in England and Wales follow a strict order of priority. The outcome depends entirely on the family members who survive the deceased.

If the deceased was married or in a civil partnership

A surviving spouse or civil partner does not automatically inherit everything, contrary to what many people assume.

• If there are no children or other descendants, the surviving spouse or civil partner inherits the entire estate.
• If there are children or other descendants, the surviving spouse or civil partner receives all personal possessions, a fixed statutory legacy – currently £322,000 – and half of whatever remains above that figure. The other half passes to the children in equal shares.

The spouse or civil partner must survive the deceased by at least 28 days for this entitlement to apply.

It is worth noting that the £322,000 statutory legacy figure is periodically reviewed. This is the amount in force from July 2023; the current figure should always be confirmed before relying on it.

If the deceased was not married or in a civil partnership

An unmarried partner inherits nothing under the intestacy rules – regardless of how long the couple were together, whether they owned property jointly, or whether they had children.

This is one of the most common and most serious consequences of dying without a will, and one that many cohabiting couples are genuinely unaware of. England and Wales do not recognise common-law marriage in law. A surviving cohabitee has no automatic right to the estate and may need to bring a formal claim under the Inheritance (Provision for Family and Dependants) Act 1975 if they are to receive anything – a process that takes time, carries cost and is not guaranteed to succeed.

Where there is no surviving spouse or civil partner, the estate passes to relatives in the following order:

• Children (or their descendants, if a child has already died).
• 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.
• Uncles and aunts of the half blood, or their descendants.

If no qualifying relatives can be found, the estate passes to the Crown as bona vacantia – effectively to the government.

Stepchildren and foster children

Stepchildren and foster children who were not legally adopted do not inherit under the intestacy rules. This applies even where the deceased raised them from an early age and had no contact with their biological parents. The rules are strict on this point.

A stepchild or foster child who was financially dependent on the deceased may be able to make a claim under the Inheritance (Provision for Family and Dependants) Act 1975, but this is a separate legal process and not an automatic entitlement. It is one of many situations where the absence of a will creates both financial uncertainty and real emotional difficulty for a family. It is also one of the clearest arguments for making a will: a properly drafted will can name a stepchild or foster child as a beneficiary directly, removing any uncertainty.

What happens to the family home?

The position of the family home under the intestacy rules depends on how it was owned.

Joint tenants: Where a couple own their home as joint tenants, the property passes automatically to the surviving owner on death, regardless of the intestacy rules. This is known as the right of survivorship. The deceased’s share does not form part of the probate estate.

Tenants in common: Where the property is owned as tenants in common, each owner holds a defined share. The deceased’s share does not pass automatically to the survivor. It forms part of the estate and passes under the intestacy rules or the will.

Many couples own their home as joint tenants without realising the distinction, or changed their ownership structure at some point and did not update a will to reflect it. If a property is held as tenants in common and the intestacy rules apply, the surviving partner may find themselves owning a share of the family home alongside the deceased’s children, parents or siblings – none of whom are required to agree to a sale.

A surviving spouse who is entitled to inherit may also have a right to claim the family home against their statutory legacy where the property forms part of the estate – a legal protection known as the right of appropriation. This is a specific provision in the intestacy rules, but it has conditions and time limits, and taking legal advice early is important.

Applying for Letters of Administration

Where there is no will, the person who administers the estate is called an administrator, not an executor. They apply for a Grant of Letters of Administration rather than a Grant of Probate, but the practical effect is the same: it gives them the formal legal authority to deal with the estate.

The order of priority for applying broadly mirrors the order of inheritance: a surviving spouse or civil partner takes priority, followed by children, then parents, then siblings. Where more than one person has equal priority, they can apply jointly or one can apply with the others’ agreement.

Before the grant is issued, the administrator will typically need to:

• Identify and value all assets and liabilities of the estate.
• Establish whether inheritance tax is payable and, if so, submit the correct return to HMRC.
• Pay any inheritance tax due – this must usually happen before the grant is issued.
• Complete and submit the probate application to the Probate Registry.

Administration without a will is often more complicated than administration with one. There is no document setting out the deceased’s wishes, appointing trusted individuals, or identifying assets. The administrator must establish the full picture from scratch. Where the estate involves property, significant assets, overseas elements, or inheritance tax, taking advice from a probate solicitor is usually the more straightforward path.

The situations that cause most difficulty

Intestate estates produce a predictable set of problems. These are the ones solicitors encounter most regularly.

The cohabiting partner with no entitlement

Statistically, the most common and most distressing outcome. A couple who have lived together for years, perhaps raised children together, perhaps own a home together, find that the survivor has no automatic entitlement to the estate. If the property is in the deceased’s sole name, the surviving partner may face losing their home. A claim under the Inheritance Act 1975 (Provision for Family and Dependants) is possible, but it requires court proceedings, takes time and is not guaranteed to succeed.

Children from a previous relationship

Where a deceased person was remarried or in a civil partnership but had children from an earlier relationship, the intestacy rules can produce a result that nobody in the family expected. The surviving spouse receives the statutory legacy and half the remainder; the children from the earlier relationship share the other half. Depending on the size of the estate and the family dynamics, this can be genuinely contentious.

No agreement on who should administer

Where several relatives have equal priority to apply for Letters of Administration, disagreement about who should act is common. It can delay the administration considerably and, in more difficult cases, requires the court to resolve.

Tracing beneficiaries

Where a deceased person had no immediate family, or family relationships were fractured or unknown, identifying and locating beneficiaries can require genealogical research. Until beneficiaries are confirmed, the estate cannot be distributed. Administrators who distribute assets before all beneficiaries are confirmed risk personal liability if a valid claimant later comes forward.

Children under 18

Where minors are entitled to inherit under the intestacy rules, their share is held in a statutory trust until they reach 18. At least two administrators are usually required to manage a trust for a minor, which can complicate the application if only one relative has come forward.

Can the outcome be changed after death?

In some circumstances, yes. Beneficiaries who are entitled to inherit under the intestacy rules can agree to redirect all or part of their entitlement to another person. This is done by way of a deed of variation, signed within two years of the date of death.

A deed of variation is most commonly used where the family wants to make provision for someone the intestacy rules have left out – an unmarried partner, a stepchild, or a dependant – or where redirecting assets can improve the inheritance tax position. It requires the consent of all affected beneficiaries and, in some cases, court approval if minors are involved.

A deed of variation does not undo the absence of a will. It adds complexity, cost and the requirement for agreement between people who may not be getting on well. It is a useful remedy in the right circumstances, but it is not a substitute for proper planning. If you are dealing with an estate where a deed of variation may be appropriate, our probate solicitors can advise on whether it is the right step and prepare the documentation.

A note on inheritance tax

The inheritance tax rules apply in the same way whether or not there is a will. But the outcome can be significantly different, because the beneficiaries are determined by law rather than by planning.

Without a will, certain reliefs and exemptions may not be available or may not apply as expected. The residence nil – rate band – the additional threshold that applies when a family home passes to direct descendants – depends on who inherits and how the estate is structured. A poorly structured intestate estate can result in a higher inheritance tax bill than a well – drafted will would have produced.

It is one of the reasons that taking professional advice on estate planning while there is still time to act is consistently worthwhile.

The straightforward solution

Most of the problems described above are preventable. A properly drafted will allows you to decide who inherits, who administers your estate, and who looks after any children or dependants. It removes ambiguity, reduces the risk of family disputes, and ensures that the people you intend to provide for are actually provided for.

If you do not yet have a will, or have not reviewed yours for some time, our will writing solicitors can advise on the right approach for your circumstances. We advise individuals and families across London and the South East on wills, estate planning and powers of attorney.

If you are already dealing with an estate where there is no will, our probate solicitors can guide you through the process of applying for Letters of Administration and administering the estate correctly.
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