When someone dies without leaving a valid will, they are said to have died intestate. This means that the distribution of what they leave – their estate – is decided by law because they have left no legal instructions.
The process follows the intestacy rules, which determine who is entitled to a share of the estate and who may be appointed to administer its distribution.
When the intestacy rules apply
The intestacy rules apply whenever there is no valid will. They can also apply if a will is found to be invalid, or if there is a partial intestacy (for example, where there is a will but a beneficiary has died and the will does not clearly state who should receive that part of the estate).
Order of inheritance under intestacy in England and Wales
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Married partners and civil partners
A surviving spouse or civil partner (provided they were married or in a civil partnership at the time of death) is the first priority when it is decided who can inherit an estate. Please note that cohabiting (or “common law”) partners do not automatically inherit. Divorce normally removes the entitlement to inherit, but informal separation does not in itself prevent someone from inheriting.
If the deceased has no surviving children, grandchildren or great-grandchildren then the surviving spouse or civil partner receives everything.
If there are surviving children (or their descendants) and the estate is worth over £322,000, it will be shared between the surviving spouse or civil partner and children (or descendants). If the estate is worth £322,000 or less, the children (or their descendants) don’t inherit.
The spouse or civil partner inherits:
- all of the deceased’s personal property and belongings
- the first £322,000 of the estate
- half of the remaining estate, with the other half passing to the deceased’s children (or dependants, if the child is predeceased)
Jointly owned assets, such as property or bank accounts, do not count in the estate and automatically become the property of the surviving owner. The only exception to this if a property is jointly owned as a 'tenants in common' agreement. In this case the property does not automatically pass to the surviving owner and instead falls into the division mentioned above. Please note that the deceased share of jointly owned assets is included in the inheritance tax calculation.
Children, grandchildren and great-grandchildren
If there is no surviving spouse or civil partner, the estate will pass to the deceased’s children in equal shares. If there are children from other relationships (who have not been adopted into another family), they will also be included in the division of the estate if it is their biological parent who has died. Children do not receive their inheritance until they are 18 (or enter into a marriage or civil partnership). Until then, their share of inheritance is managed by the administrators, or trustees, on their behalf. Grandchildren (and great-grandchildren) will only be able to inherit under intestacy rules if their parent is predeceased. If this is the case, they will inherit the share that their parent would otherwise have received.
More distant relatives
If the deceased was not married and had no children, grandchildren or great-grandchildren then the following relatives will become the beneficiaries in this order of priority:
- parents
- siblings
- half Siblings
- grandparents
- uncles and aunts (or their children)
- half uncles and aunts (or their children)
The Crown
If there are no living relatives, the entire estate will go to the Crown. This is known as “bona vacantia”. The Treasury Solicitor will be responsible for administering the estate.
If you are concerned about any changes at home, you could put together a family care plan to divide responsibilities between relatives. Or consider bringing in a bit of extra support: a regular cleaner or a home care service will take the pressure off you and your parents.
Intestacy rules in Scotland
In Scotland, the intestacy rules are slightly different to those in England and Wales. A surviving spouse or civil partner is entitled to “prior rights”, which includes a share of a family home up to the value of £473,000 (provided it is in Scotland and the intestate person resided in it when they died), plus furniture and other moveable assets, up to £29,000. Once these have been divided, anything remaining is shared by “legal rights” amongst children and other living relatives. Beyond this, the Succession Act determines how the estate is shared.
Who administers an estate under intestacy rules?
If there is no will, there is no executor (the person delegated to administer a will). Instead, an ‘administrator’ is appointed to deal with the estate under the intestacy rules. This will be decided by strict reference to the list of eligible people in order of priority, first being a surviving spouse or civil partner, if none then children, parents, siblings and so on. The administrator will apply to the Probate Registry for a “grant of representation” before they can manage the estate and assets.
To find out how to apply for a grant of probate and how the process works follow the link.
Changing how an estate is divided under intestacy rules
If there is no will and all beneficiaries agree, the order in which an estate is shared can be varied by a deed of family arrangement. This is a legal agreement that must be unanimous. You have to do this within two years of the death and you must report it to HMRC if it changes the inheritance tax calculation. You will certainly need to seek legal advice when making such an agreement.
Who cannot inherit under intestacy rules?
If you die without a will, the following people will not automatically inherit under the intestacy rules:
- unmarried partners
- step or foster children
- Unrelated people who are important to the deceased and financially dependent on them
If a person does not inherit under intestacy rules, but believes like they should, they can apply to the court under the Inheritance (Provision for Family and Dependants) Act 1975. Applications under this legislation must be done relatively soon after death and will require legal assistance and advice.
FAQs on the rules of intestacy
What is partial intestacy?
Partial intestacy occurs when someone dies leaving a valid will but does not include the disposal of all their assets in that will. The intestacy rules will be applied to those assets which are not disposed of under the will.
Can intestacy rules be challenged?
You can't contest an intestacy ruling in the same way you can contest a will. However, if you believe the person who died would have wanted to leave you an inheritance you can make a claim under the Inheritance (Provision for Family and Dependants) Act 1975.
How long does intestacy take to sort?
Timings vary. On average it takes up to six months to complete straightforward intestacy, but more complex cases can take 12 months or longer.
What fees are involved in intestacy?
Costs may include fees for a probate specialist and their fees will vary depending on the size and complexity of the estate. Do shop around. Other costs include the application for a grant of administration, funeral costs, continued payments for mortgages and, possibly, inheritance tax. You can do it yourself, but please do seek professional advice.
What happens to bank accounts when someone dies intestate?
The administrator must inform the bank and provide them with a copy of the death certificate. The bank will then freeze the account or accounts until the administrator has obtained what’s called “the letters of administration”, which gives them legal authority over the bank account.
What happens if a tenant in common dies intestate?
When property is owned as tenants in common, each person owns their separate share of the property. On death, the deceased owner’s share forms part of their estate and is distributed through the rules of intestacy.
Making a will is the simplest way to avoid the default operation of intestacy. If you want to ensure your wishes are followed and protect people who depend on you, follow our simple guide to writing a will.
- Check who can apply for probate if someone dies without a will on the GOV.UK website.
- Read about joint property ownership and tenants in common on the GOV.UK website.
- Learn more about bona vacantia on the GOV.UK website.
- For more information about family law in Scotland, go to GOV.SCOT
- In-depth information on the Inheritance (Provisions for Family and Dependants Act 1975 can be found at legislation.gov.uk.
