Dying Without a Will

Wills Factsheet No.5

Dying without a Will not only can lead to more complications and extra work for those who have to deal with your estate but can also lead to the wrong people benefiting from your estate and those whom you wanted to benefit losing out altogether.

If you die without having made a valid Will you are said to have died "intestate" and a set of rules known as the intestacy rules will decide who gets what from your estate.

Aside from the general lack of certainty in dying intestate, there are a number of other undesirable consequences of not making a Will including:

no control over the distribution of your estate;
no influence over who will look after your estate;
the potential for increased responsibility for those dealing with your affairs;
inheritance problems for unmarried couples or same sex couples not in a civil partnership;
property going to a spouse from whom you are separated but not divorced;
property not going to the children of a partner with whom you are living but not married;
paying more inheritance tax than needed;
property having to be sold to pay beneficiaries at the expense of another; and
if you have no close relatives and you are not married, the your whole estate going to the Crown

Even if you have made a Will, the rules of intestacy may still apply to your estate, either in whole or in part. Thus, your Will may fail because, for example, it has not been validly made or if you have failed to dispose of the whole of your estate. Normally including a clause disposing of the residue of your estate (that is to say, everything not otherwise disposed of by the Will) is going to prevent parts of your estate from failing to be disposed of, but it does highlight the need to ensure that your Will is validly made in the first place.

The rules of intestacy

When someone dies without having made a valid Will the rules of intestacy (current at the date of death) are used to deal with their estate. Note that different rules apply outside of England and Wales.

The question of who inherits under an intestacy is often complicated and depends upon who survives the deceased and whether the deceased was married or in a civil partnership and had children at the date of death. To help you understand this please see our Intestacy Flowchart.

The intestacy rules envisage four separate sets of circumstances potentially applying to someone who dies without making a Will, namely:

Married with children - those who are separated are treated for the purposes of these rules as if they were still married;
Married with no children - but with parents and/or brothers and sisters
Married with no children - but with no parents or brothers and sisters alive
Single, widowed or divorced - however, not just separated which would count as married.

1. Married with Children

If you are married or in a civil partnership, and you have children, the following rules will apply:

Your spouse/civil partner gets:

your personal items - e.g. household items, jewellery and cars - but not business items;

the first £250,000 of your estate; and

a life interest in half of the remainder of the estate - in other words a right to receive the interest on any capital but not the capital itself

However, be aware that your spouse/civil partner must survive you for 28 days otherwise your estate will pass as if they had not survived you.

Your children (but not your step children) get:

the other half of the remainder of the estate outright on reaching the age of 18 or marrying before that; and

the other half of the remainder after the death of the spouse or civil partner

Note that if there is more than one child, then each child will be entitled to an equal share. If a child has predeceased the intestate then their estate will not receive a share but if they have died leaving children (or grandchildren) of their own then the child will take the share the parent would have taken had they been alive, and if more than one in equal shares.

2. Married with no children

If you are married or in a civil partnership and you do not have children then the following rules will apply:

Your spouse/civil partner gets:

your personal items - e.g. household items, jewellery and cars - but not business items;

the first £450,000 of your estate; and

half of any excess over £450,000 outright.

Note that the spouse/civil partner must survive the deceased for 28 days. If the spouse/civil partner dies before the end of that 28 day period then the estate will pass if the spouse/civil partner had not survived the deceased person.

Your parents, or if they are not living your brothers and sisters, get:

Balance of the excess over £450,000

Note that the surviving parents will get the excess first. Only if neither parent survives will the estate pass to brothers and sisters (who must have shared the same two parents as the intestate) and if they have predeceased the intestate leaving children, then those children will take in equal shares the share which their parent would have taken.

3. Married or in a civil partnership with no children, parents , brothers or sisters

If you die leaving a spouse or civil partner and and you have no children, parents, brothers or sisters and there are no children of any brothers or sisters still living, the your spouse/civil partner will get everything.

4. Single, Widowed or Divorced

If you are single, windowed or divorced (note separated but not divorced counts as married for these purposes) then your estate will be go as follows:

to your children,

if there you have no children, then to your parents,

if your parents have both predeceased you, then to your brothers or sisters,

if no brothers and sisters, then to your half-brothers and half-sisters,

if no half-brothers or half-sisters, then to grandparents,

if no grandparents, then to aunts and uncles,

if no aunts and uncles, half-aunts and half-uncles,

if no half-aunts and half-uncles, to the Crown.

Note that in all cases if there is more than one person in any group, then they take equally between them, that if the members of any of the groups other than grandparents have predeceased the intestate then their children will take equally the share their parent would have taken and that if any member of any of the groups is under the age of 18 their share will be placed in trust until they reach the age of 18 or marry at an earlier age.

Miscellaneous points

You should note also the following:

children means direct descendants of the deceased person - so includes grandchildren and great-grandchildren - but does not include step children. Note however, that the deceased did not have to be married to the mother or father of the child;
adopted children are treated for the purposes of intestacy as being the children of the deceased rather than the children of their natural parents;
if the deceased was co-habiting with someone else, (i.e. they were not married and had not entered into a civil partnership) then their partner will not inherit under the intestacy - they would have to make an application under the Inheritance (Provision for Family and Dependants) Act 1975 on the basis that “reasonable financial provision” has not been made for them. It is worth bearing in mind that these claims can be time-consuming and costly, so it is far better to provide for the co-habitee by Will.
if the deceased owned a property jointly with another person as joint-tenants (as opposed to tenants-in-common) then that property will not fall into the estate for the purposes of the £250,000 and £450,000 limits referred to above.