Intestacy: What Happens If You Die Without Leaving a Will?

What Are Intestacy Rules?

Many people incorrectly assume that on death, their estate passes in its entirety to their spouse or partner, however, legally this is not always the case. If a person dies without leaving a Will, the law sets out how their estate is to pass under what is known as the ‘Intestacy Rules’. 

There is also a general misconception that there is a “common law spouse”, however, under the intestacy rules, unmarried couples cannot inherit from each other’s estates. 

The exception is assets that are held jointly between couples such as joint bank accounts which will usually pass to the surviving co-owner. Similarly, when a property is held as ‘joint tenants’ it will pass automatically to the surviving co-owner but not when a property is owned as tenants in common. It is therefore very important that you check how property is held when thinking about your will and estate. Our wills or property teams can check this for you easily so please get in touch if you are unsure. 

Who Will Benefit from Your Estate If You Have No Will?

The intestacy rules set out who will benefit from your estate and in which order. In some circumstances, spouses or civil partners will not inherit the entirety of an estate.   The inheritance that a spouse or civil partner receives will depend on whether the deceased had any children or remoter issues (direct descendants) who survived them. 

If a person dies without leaving any children, their spouse or civil partner will inherit all of their personal property and belongings and the whole of their estate. 

For example: 

• Harry dies without leaving a Will. He is married to Claire, and they do not have any children. 
• Harry’s estate is worth £500,000. 
• Claire will inherit the whole estate, including all personal property and belongings. 

However, if a married person dies leaving children, the inheritance that their spouse or civil partner receives is limited. Firstly, it is important to note that the surviving spouse or civil partner will inherit any joint assets, for example, jointly owned bank accounts and properties that are held as joint tenants will automatically pass to the surviving co-owner. The surviving spouse or civil partner will also receive any personal items or household contents.  

The first £270,000, known as the statutory legacy, will also pass to the surviving spouse or civil partner.  

The remainder of the estate is then divided into one half to the surviving spouse or civil partner and the remaining half to the deceased’s children and if more than one, in equal shares.    

For example: 

• Kevin and Stella are married with two children. Stella dies first and her estate is comprised of their jointly owned family home, her household and personal possessions, and cash assets of £500,000.  
• The family home will pass automatically to Kevin by survivorship. 
• All of Stella’s household and personal possessions pass to Kevin and the sum of £270,000 is the statutory legacy. 
• From the remainder of Stella’s estate, 50% passes to Kevin and 50% passes equally between their two children.  

Kevin = The family home + Household and Personal Possessions + £270,000 + £115,000. 

Children = £115,000. 

If either of their children had died before Stella, leaving children of their own then those children will inherit the share which their parent would otherwise have inherited.

What If You Are Unmarried and/or Have No Children?

If you are unmarried but have children who survive you, your estate will pass to your children. 

However, if you are unmarried and have no children, the laws of intestacy stipulate that the whole of your estate passes to your relatives in the following order of priority: 

1. Parents. 
2. Siblings of whole blood (or their children). 
3. Siblings of half-blood (or their children). 
4. Grandparents. 
5. Aunts and uncles of whole blood (or their children). 
6. Aunts and uncles of half-blood (or their children). 

If you die without leaving any living relatives in any of these categories, then the whole of your estate will pass to the Crown. 

You should also note that the definition of “children” includes illegitimate children and adopted children but does not include stepchildren. 

How to Avoid This?

You can avoid this by simply making a Will which allows for effective tax planning, and contingency arrangements. Under the intestacy rules, people who you do not wish to benefit may be entitled to part of your estate, and more importantly, people who you may wish to inherit, such as friends and grandchildren, might not be entitled! Making a Will ensures your estate is distributed according to your wishes and gives you the freedom to choose who you want to benefit from your estate on your death. 

This is a complicated area of law and is also something that most people do not want to dwell on. We are here to provide clear and detailed advice based on your own circumstances so that you can carry on with your life happy that you are leaving clear instructions to your family and friends on your death. 

If you need assistance, please do not hesitate to contact our Wills and Probate team on 0121 705 7571.