What Happens If You Die Without a Will? Intestacy Rules Explained

Dying intestate means dying without a valid will. It can also happen partially — for example, if a will fails to deal with the whole estate, or if a will is found to be invalid. When someone dies intestate, their estate is distributed according to the rules of intestacy set out in law. A close relative usually has to apply for a grant of letters of administration (the equivalent of probate where there is no will) before they can deal with the estate. Crucially, the person who administers the estate and the people who inherit are both determined by law, not by personal preference.

The rules are rigid. They cannot take account of promises you made, people you wanted to provide for, or charities you wished to support. This is why the outcome of intestacy so often differs from what the person would have chosen had they made a will.

Where someone leaves a surviving spouse or civil partner, that person is given priority — but how much they receive depends on whether there are also children. If there are children, the surviving spouse receives all the personal possessions (known as personal chattels), a fixed sum called the statutory legacy, and then half of anything left over. The statutory legacy in England and Wales is currently £322,000. The other half of the remaining estate passes to the children.

If there are no children, the surviving spouse inherits the entire estate. It is important to understand that only a married spouse or registered civil partner benefits in this way. There is no concept of "common law marriage" in England and Wales — an unmarried partner has no automatic right to inherit under the intestacy rules, no matter how long you have lived together. They may have to make a separate legal claim, which is uncertain, stressful and costly.

If the estate is worth £322,000 or less and there is a surviving spouse, the spouse takes everything and the children inherit nothing under intestacy. If the estate is worth more than £322,000, the spouse receives the chattels, the £322,000 statutory legacy and half of the balance, while the children share the other half equally between them. Where a child has died before you, that child's own children (your grandchildren) usually inherit their parent's share.

Children inherit at 18 in England and Wales — and that includes biological and legally adopted children, but not stepchildren who have not been adopted. For many families this raises two concerns: a young adult inheriting a substantial sum at 18 with no structure around it, and stepchildren in a blended family receiving nothing at all unless they were legally adopted. A will allows you to address both — for example by using trusts, or by naming stepchildren as beneficiaries.

If there is no surviving spouse or civil partner, the estate passes down a fixed order of priority: first to children (or their descendants), then to parents, then to brothers and sisters (or their children), then to half-siblings, grandparents, and finally aunts and uncles. The estate passes to the first category in that list where a living relative exists.

If no relatives can be found at all, the estate passes to the Crown under a process known as "bona vacantia". This strict order is another reason intestacy can produce unwelcome results: close friends, an unmarried partner, stepchildren and chosen charities are all excluded, even where they were the people closest to you.

Inheritance tax is charged at 40% on the value of an estate above the available allowances. The nil-rate band is £325,000 and the residence nil-rate band is a further £175,000 where a main home passes to direct descendants — both are frozen until at least April 2031. Anything passing to a surviving spouse or civil partner is exempt from inheritance tax thanks to the spouse exemption.

The problem with intestacy is that it gives you no control over how these allowances are used. A will can be structured to make the most of available allowances and reliefs, to pass assets to a spouse tax-efficiently, or to direct a home to children so the residence nil-rate band applies. Because an unmarried partner is not covered by the spouse exemption and does not inherit under intestacy at all, couples who are not married or in a civil partnership are particularly exposed. Making a will, and reviewing it after major life events, is the most reliable way to keep control of both who inherits and how much tax is paid.