A will is a legally binding document that outlines your wishes regarding your money, property and possessions, including how they should be distributed after your passing. A will can also detail arrangements for minor children, both in terms of care and finances.
When you make a valid will, you take control of how your estate (such as your money, property and other assets) is distributed. When you die without a will, the rules of intestacy are applied.
What Is Intestacy?
Intestacy happens when a person dies without a will, their will is invalid, or there is only a partial will. In these situations, their estate – which includes everything they own, such as property, money, and possessions – must be distributed following the rules of intestacy.
Who Happens If Someone Dies Without A Will?
If someone dies without a will, the rules of intestacy determine who inherits their assets. These rules follow a specific legal hierarchy that prioritises close family members, starting with their spouse or civil partner.
Spouse or Civil Partner
The surviving spouse or civil partner is usually the first in line to inherit under intestacy, provided they are legally married or in a civil partnership at the time of death.
If you are divorced or your civil partnership has been legally dissolved, you won’t inherit anything under the rules of intestacy. Similarly, cohabiting partners won’t inherit either.
If you are separated but haven’t legally divorced or ended a civil partnership, then you can inherit under the rules of intestacy.
If there are no surviving children, grandchildren, or great grandchildren, the spouse or civil partner will inherit all of the personal property and belongings of the deceased and the whole of the estate with interest from the date of death.
Children
If you are married or in a civil partnership at the time of death, how inheritance is shared if you die intestate depends on if there are surviving children and if the estate is valued at more than £322,000. If this is the case then, the spouse or civil partner will inherit:
All the personal property and belongings of the person who died
The first £322,000 of the estate
Half of the remaining estate
Children of the parent who died intestate inherit equal shares of the remaining half if there are two or more of them. If children are under the age of 18, they won’t receive their inheritance share until they turn 18 or they marry or form a civil partnership, whichever happens first. In the interim, trustees are appointed to manage the inheritance on their behalf.
Adopted children (including step-children who have been adopted) can inherit under rules of intestacy. However, step-children who haven’t legally been adopted do not.
Grandchildren and Great Grandchildren
Grandchildren and great grandchildren can’t inherit from an estate if someone dies without a will unless their parent or grandparent has died before the intestate person, or their parent is alive when the intestate person dies but dies before reaching the age of 18 without having married or formed a civil partnership.
If this happens, grandchildren and great grandchildren inherit equal shares of the share to which their parent or grandparent would have been entitled.
Parents
If there is no surviving spouse, children, grandchildren or great grandchildren, surviving parents are next in line to inherit according to the rules of intestacy.
Siblings and Nieces/Nephews
If the deceased has no surviving spouse, children, descendants, or parents, their siblings or their siblings' children (nieces and nephews) become eligible to inherit. Half-blood siblings, who share one biological parent with the deceased, are generally treated the same as full-blood siblings under intestacy rules.
Grandparents
In the absence of the previously mentioned relatives, the deceased's grandparents may inherit.
Aunts and Uncles
If none of the above relatives survive the deceased, aunts and uncles, or their descendants, may inherit.
Who Can’t Inherit If You Die Without A Will
Intestacy rules mean certain people have no right to inherit any part of the estate when a person dies without a will. These are:
Unmarried partners
Lesbian or gay partners not in a civil partnership
Relations by marriage (e.g. Sister in law)
Close friends
Carers
In some cases, the above people might be able to apply to court for financial provision from the estate. But they do not have any automatic rights when it comes to inheritance.
What Happens If You Die Without A Will & With No Surviving Relatives
Under the rules of intestacy, if there are no surviving relatives the estate passes to the Crown. In this instance the Treasury Solicitor deals with the estate and the Crown can make grants from the estate but is not obliged to.
If you are not a surviving relative of an intestate person but believe you have good reason to apply for a grant from the Crown, you should seek advice from a solicitor that specialises in wills, trust and probate.
Intestacy can have significant implications for your estate and loved ones. Without a will, you lose control over how your assets are distributed. Instead, the law steps in to determine who gets what. This means there could be delays in settling your estate, as it can be more complex to determine who is to inherit and their entitlements.
Furthermore, the rules of intestacy may not align with your wishes, potentially resulting in assets going to individuals you wouldn't have chosen.
For loved ones dealing with intestacy, the process can be emotionally and financially challenging. The lack of clear instructions can lead to probate disputes and added stress during an already difficult time.
Can Intestacy Rules Be Challenged?
If you believe you have good reason to challenge an intestacy ruling, you can make a claim under the Inheritance (Provision for Family and Dependents) Act within six months of the date probate is granted.
Contesting intestacy rules is not the same as contesting a will and there are no guarantees your claim will be accepted.
Alternative options to challenging intestacy rules include asking beneficiaries to apply for a deed of variation (sometimes referred to as a Deed of Family Arrangement), where beneficiaries jointly agree to redirect any gift they have received in a Will, in port or in whole to other people.
Common Challenges and Issues with Intestacy
Intestacy can cause a big issue for both the deceased's estate and their surviving family members in the disputes. Common challenges and disputes that arise when there is no will include the following:
Unmarried Partners
Intestacy can be particularly challenging for unmarried couples, even if they've lived together for many years. Unmarried partners have no automatic inheritance rights under the rules of intestacy. Without a will, a surviving partner may receive nothing, potentially leaving them financially vulnerable.
If the couple jointly owns property, the surviving partner may not automatically inherit the deceased's share. This can lead to disputes with other family members. Furthermore, if the couple has children together, intestacy can create uncertainties about child custody and guardianship arrangements.
Separated Partners Who Aren’t Formally Divorced
If someone who passed away was separated from their spouse, but they didn't get a divorce, their estranged spouse could receive up to £270,000 from the estate if there are enough assets. This could be potentially contentious, particularly if the person who passed away has a new partner who does not stand to inherit anything.
If someone thinks they should get something from the estate but were left out, they might be able to make a claim under The Inheritance (Provision for Family and Dependants) Act 1975.
Unequal Contributions
Family members who contributed differently to the deceased's life may feel that the distribution of assets isn't fair. For example, a child who provided care in the final years of the deceased's life may feel entitled to a larger share. However, under the rules of intestacy, children get an equal share if there are 2 or more of them.
Multiple Heirs
When there are multiple heirs, such as siblings or nieces and nephews, deciding on the distribution of personal belongings or deciding who administers the estate in the absence of a will can be contentious.
The Rights of Dependents
Intestacy can also affect dependents, such as minor children or individuals with special needs.
Without a will, there may be uncertainty about who will become the legal guardian of minor children, who will support them financially and how inheritance tax will impact the value of the estate.
The Tax Implications of Dying Without a Will
When it comes to dealing with the estate of a loved one who died intestate, it's important to consider the potential tax implications that can affect the value of the assets left behind.
Dying Intestate and Inheritance Tax
When you leave assets to your surviving spouse or civil partner, they usually don't have to pay inheritance tax on those assets. However, in cases of intestacy, where there's no will, things can get a bit more complicated.
Here's how it works:
If the estate's total value is more than £322,000, the surviving spouse will get £322,000, plus the deceased's personal belongings, and half of what's left – and none of this is taxed.
The other half, which goes to children or other family members, may be subject to inheritance tax if it's over the current allowance of £325,000. This tax would usually be paid when the surviving spouse passes away.
What's important to note is that if intestacy uses up the first spouse's allowance, it's possible that the inheritance tax bill on the surviving spouse's estate will be higher.
Creating a valid will can often help reduce the overall tax burden on your estate. By specifying your wishes and making use of available exemptions and reliefs, you can ensure that more of your assets go to the people you choose as beneficiaries, rather than to taxes. This way, you can take control of your legacy and minimise the financial impact on your loved ones.
Dying Without A Will FAQs
What is the difference between a will and intestacy?
A will is a legal document that allows you to specify how your assets should be distributed after your passing. Intestacy, on the other hand, occurs when someone dies without a valid will, leading to the application of predetermined legal rules for asset distribution.
Who gets custody of children after the death of both parents when there is no will?
In cases where both parents have died with child arrangements and custody decisions fall to the court. There is no automatic hierarchy as to who gets custody of children as there is with asset distribution. As in all family law proceedings, the court puts children's needs and welfare first, so their decision is informed by evidence presented to the court.
Typically, the courts will look at who is most closely related to the child and family members who the child has spent a lot of time with. If there are no surviving relatives, family friens may also be considered in this situation. The guiding principle of the final decision over who gets custody of children in the absence of a will is one that causes the least disruption to a child's life.
Can I make changes to the distribution of assets under the rules of intestacy?
Generally, no, you cannot make changes to the distribution of assets under the rules of intestacy. The law determines how assets are distributed, and these rules must be followed. That being said, beneficiaries can use a Deed of Variation to change how the estate has been divided up under the rules of intestacy in the same way as changing a will after death, but all beneficiaries must agree to these changes.
What happens if there are disputes among potential heirs?
Disputes can and do arise during intestacy. It's advisable to seek legal advice and consider mediation or alternative dispute resolution methods to resolve conflicts amicably.
Can I leave assets to charity under the rules of intestacy?
No, you cannot leave assets to charity under the rules of intestacy. Charitable bequests are only possible if you have a valid will.
Should I consult a solicitor when someone dies without a will?
Yes, it's highly advisable to consult a solicitor when dealing with intestacy. They can guide you through the processes, help resolve disputes, and ensure that the estate is administered correctly.
Can I create a will after someone has passed away to avoid intestacy?
You cannot create a will for someone who has already passed away. A will is a legal document that outlines somebody's wishes following their death, it is not possible to create a will on someone else’s part once they are deceased.
Is there a time limit for administering an intestate estate?
While there is no strict time limit for administering an intestate estate, it's essential to start the process as soon as possible to avoid delays and potential legal issues. The Inheritance Act also gives a six month time limit for inheritance claims from the dates of the Letters of Administration. In very rare cases this can be extended.
Getting Legal Help For Intestacy
Understanding the rules of intestacy and the complexities that can arise when someone passes away without a valid will is crucial. Whether you are considering your own estate planning or find yourself in a situation where intestacy may apply, being informed is the first step.
If you're ready to take action and secure your legacy or get help in dealing with intestacy from a trusted UK solicitor, tell us about your case and get a fixed-fee quote from a wills and probate solicitor through Lawhive.
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