By Kreston Solicitors · 16 August 2026
When someone dies without leaving a valid will, they are said to have died intestate.
Instead of the estate being distributed according to the person’s wishes, the law determines who inherits under a fixed order known as the intestacy rules.
These rules apply in England and Wales and may produce a very different outcome from what the deceased expected. An unmarried partner may receive nothing, stepchildren may be excluded and a surviving spouse may have to share the estate with the deceased’s children.
Intestacy can also make the administration of an estate more complicated because no executor has been chosen and no instructions have been left about personal possessions, funeral wishes or the management of assets for younger beneficiaries.
What Does Dying Intestate Mean?
A person dies intestate when they die without leaving a legally valid will.
Intestacy can also arise where a will exists but is invalid, has been revoked or fails to deal with the entire estate. Where only part of the estate is not covered by the will, that part may pass under the intestacy rules as a partial intestacy.
The intestacy rules decide who receives the deceased’s estate after debts, funeral costs, administration expenses and any tax liabilities have been dealt with.
The rules do not attempt to determine what the deceased probably wanted. They apply the same statutory structure regardless of the family’s personal relationships.
The Rules Apply in England and Wales
England and Wales share the same main intestacy framework under the Administration of Estates Act 1925, as amended.
Different succession rules apply in Scotland and Northern Ireland, so the outcome should not be assumed to be the same throughout the United Kingdom.
The person’s domicile and the location and nature of their assets can also create additional legal questions where they had property or connections overseas.
Who Deals with the Estate?
When there is a valid will, the people appointed as executors normally apply for a grant of probate.
When there is no will, there is no named executor. An entitled relative must usually apply for a grant called letters of administration. This document gives the administrator authority to collect assets, settle liabilities and distribute the estate.
The person with the first right to apply is usually the deceased’s surviving spouse or civil partner. If there is no spouse or civil partner, adult children may normally apply, followed by other relatives in the statutory order. A stepchild who was not legally adopted does not ordinarily have the same right merely because of the family relationship.
A maximum of four administrators may be appointed through the grant.
Does the Surviving Spouse Inherit Everything?
A husband, wife or civil partner does not automatically inherit the whole estate in every case.
The outcome depends principally on whether the deceased also left children or other direct descendants.
Where the deceased leaves a spouse or civil partner but no children, grandchildren or other direct descendants, the surviving spouse or civil partner inherits the entire intestate estate.
Where the deceased leaves both a spouse or civil partner and children, the estate is divided according to a statutory formula.
What Happens When There Is a Spouse and Children?
For a death under the current intestacy rules, the surviving spouse or civil partner receives:
• the deceased’s personal possessions;
• a statutory legacy of £322,000; and
• half of any estate remaining after the statutory legacy has been paid.
The deceased’s children share the other half of the remaining estate.
This means that where the net intestate estate is worth no more than £322,000, the spouse or civil partner will normally inherit the whole estate.
Where the estate exceeds £322,000, the children become entitled to a share of the balance.
An Example of the Intestacy Calculation
Suppose a married person dies leaving a net intestate estate of £722,000 and two children.
The surviving spouse receives the first £322,000.
This leaves £400,000.
The spouse receives half of that balance, which is £200,000. The children share the remaining £200,000 equally, receiving £100,000 each.
The spouse therefore receives £522,000 in total, together with the deceased’s personal possessions.
This example assumes that the assets form part of the intestate estate and does not account for property passing automatically by survivorship, tax, administration expenses or other individual circumstances.
What Counts as Personal Possessions?
The surviving spouse or civil partner is generally entitled to the deceased’s personal chattels when children also survive.
These may include items such as furniture, jewellery, vehicles, clothing and household belongings held for personal use.
Some assets may not fall within the ordinary definition, particularly where they were used wholly or mainly for business purposes or held primarily as investments.
Disputes can arise where valuable collections, artworks, vehicles or other assets have both personal and investment characteristics.
A properly drafted will can identify who should receive particular possessions and reduce uncertainty about items carrying financial or sentimental value.
What Happens If There Is No Spouse or Civil Partner?
Where there is no surviving spouse or civil partner, the children ordinarily inherit the estate in equal shares.
If one of the deceased’s children died before them but left children of their own, those grandchildren may inherit the share that their parent would have received. The same principle can continue through later generations.
Children’s shares are generally held on statutory trusts until they reach the required age, normally 18.
Where there are no children or other direct descendants, the estate passes to relatives in a statutory order of priority.
Which Relatives Inherit Next?
If there is no surviving spouse, civil partner, child, grandchild or other direct descendant, the estate generally passes in the following order:
• parents;
• brothers and sisters of the whole blood, or their descendants;
• brothers and sisters of the half blood, or their descendants;
• grandparents;
• uncles and aunts of the whole blood, or their descendants; and
• uncles and aunts of the half blood, or their descendants.
A relative within a higher category ordinarily excludes relatives in the categories below it.
Cousins may therefore inherit in some circumstances as descendants of an uncle or aunt, but more distant relatives outside the statutory categories may not.
What Happens If No Relatives Can Be Found?
Where a person dies without a valid will and without relatives entitled under the intestacy rules, the estate may pass to the Crown as bona vacantia.
Special arrangements apply in areas connected with the Duchies of Lancaster and Cornwall. The Bona Vacantia Division of the Government Legal Department deals with many ownerless estates in England and Wales.
Potential relatives can search published estates and may be able to submit a claim if they can prove their relationship to the deceased.
A close friend, carer or unmarried partner does not become entitled merely because no blood relative has yet been identified.
Do Unmarried Partners Inherit?
An unmarried partner does not automatically inherit under the intestacy rules, regardless of how long the couple lived together.
There is no legal status of common-law husband or common-law wife in England and Wales. Living together for many years, sharing household expenses or having children together does not give a cohabiting partner the same automatic inheritance rights as a spouse or civil partner.
The surviving partner may retain assets they already own and may receive jointly owned property passing by survivorship. They may also receive benefits paid under a pension or life-insurance nomination.
However, assets forming part of the deceased’s sole estate will be distributed under the intestacy rules.
This can leave a surviving partner without the deceased’s share of the home or sufficient financial support.
Can an Unmarried Partner Make a Claim?
A surviving cohabiting partner may sometimes be able to bring a claim under the Inheritance (Provision for Family and Dependants) Act 1975.
The Act allows certain people to ask the court for reasonable financial provision where the will or intestacy rules do not make adequate provision for them. Potential applicants can include spouses, civil partners, former spouses, qualifying cohabitants, children and people who were being maintained by the deceased.
A claim is not an automatic entitlement to the same share that a spouse would have received.
The court considers the statutory criteria and the circumstances of the estate and the people involved.
Strict time limits can apply, so legal advice should be obtained promptly rather than waiting until the estate has been fully distributed.
Do Stepchildren Inherit?
Stepchildren do not normally inherit from a stepparent under the intestacy rules unless they were legally adopted by the deceased.
The legal meaning of children or issue includes adopted children but does not automatically include a spouse’s children from another relationship.
This can create an unexpected result in blended families.
A person may have raised a stepchild from a young age and regarded them as their own, but the stepchild may receive nothing from the intestate estate.
A stepchild who was financially maintained by the deceased may potentially have grounds to make a family-provision claim, but this is different from inheriting automatically.
Do Adopted Children Inherit?
A legally adopted child is generally treated as the child of the adoptive parent for intestacy purposes.
They can therefore inherit from an adoptive parent in the same way as a biological child.
Adoption also changes the child’s legal relationship with their birth family for succession purposes, subject to particular legal exceptions and the facts of the case.
A person wishing to benefit biological children, adopted children, stepchildren or other family members in a particular way should state this clearly in a professionally drafted will.
What If the Deceased Was Separated?
A spouse or civil partner can remain entitled under the intestacy rules even where the couple had separated.
Separation by itself does not end the marriage or civil partnership. Until a final divorce or dissolution has taken effect, the surviving spouse or civil partner may retain inheritance and administration rights. GOV.UK expressly notes that a spouse or civil partner can have priority to administer an intestate estate even if the couple were separated.
This can produce an outcome the deceased did not intend, particularly where they had formed a new relationship but had not completed the divorce or made a new will.
A former spouse whose divorce has been finalised does not inherit as a surviving spouse under intestacy.
The 28-Day Survival Requirement
A surviving spouse or civil partner must generally survive the deceased by at least 28 days to inherit under the intestacy rules.
If the spouse or civil partner dies within that period, they are treated for intestacy purposes as having died before the deceased.
This rule can affect the distribution of both estates where a couple dies in the same accident or within a short period of one another.
A carefully drafted will may contain its own survivorship provision and can coordinate what happens in these circumstances.
What Happens to the Family Home?
The outcome depends on how the property was owned.
Where the home was owned as beneficial joint tenants, the deceased’s interest will ordinarily pass automatically to the surviving joint owner by survivorship. It does not pass under the intestacy rules, although its value may still be relevant for Inheritance Tax.
Where the owners were tenants in common, each person owned a separate share. The deceased’s share becomes part of their estate and passes under their will or the intestacy rules.
Where the property was held in the deceased’s sole name, it forms part of the estate.
An unmarried partner who lives in a solely owned property may therefore have no automatic right to inherit it.
Can a Surviving Spouse Keep the Home?
A surviving spouse or civil partner may sometimes be entitled to use their intestacy entitlement towards taking the deceased’s interest in the matrimonial home.
Whether this is possible will depend on the value and ownership of the property, the size of the estate, the interests of other beneficiaries and the administration process.
Where children are also entitled, the home may represent most of the estate. The administrator may then need to consider whether other assets are available to satisfy the children’s shares or whether the property must be sold.
A will can provide clearer instructions, such as allowing a spouse to remain in the property, creating a life interest or balancing the inheritance using other assets.
What Happens to Joint Bank Accounts?
Money in a genuine joint account may pass to the surviving account holder by survivorship rather than under intestacy.
The legal and beneficial ownership should still be examined. An account may have been opened jointly for convenience even though all the money belonged beneficially to the deceased.
Banks may freeze or restrict an account while ownership and administration issues are considered.
The deceased’s share may also remain relevant when calculating the estate’s value for Inheritance Tax. GOV.UK advises that jointly owned bank accounts, shares and property can create an Inheritance Tax charge based on the deceased’s interest.
What Happens to Pensions?
Many pension death benefits do not pass under the will or intestacy rules in the same way as ordinary estate assets.
The pension scheme’s rules and any expression-of-wish or nomination form may influence who receives the benefit. Trustees or scheme administrators may retain discretion over the payment.
The position depends on the type of pension, whether benefits had already been drawn and the terms of the arrangement.
Pension and death-benefit values may still need to be considered during the estate and Inheritance Tax reporting process. GOV.UK’s estate-valuation guidance requires personal representatives to consider relevant pension death benefits and life-insurance payments when estimating the estate.
Pension nominations should be reviewed when relationships and family circumstances change.
What Happens to Life Insurance?
A life-insurance payment may form part of the estate or pass outside it, depending on how the policy was arranged.
Where the policy was written in trust, the insurer may pay the trustees for the intended beneficiaries without the proceeds passing through the intestate estate.
Where no suitable trust or nomination exists and the payment is due to the estate, the proceeds may be distributed under the intestacy rules.
The policy documents should be checked rather than assuming that the surviving partner or children will automatically receive the money.
What Happens to Digital Assets?
Digital assets can include online accounts, cryptocurrency, websites, intellectual property, photographs, cloud-stored files and balances held through digital platforms.
The intestacy rules may determine who has the beneficial right to these assets, but practical access can be difficult without passwords, recovery information or clear records.
Cryptocurrency may become permanently inaccessible where private keys and recovery phrases cannot be located.
Leaving a secure inventory and appropriate instructions can help personal representatives identify and manage digital assets without publicly exposing sensitive login information.
Who Looks After Children Under 18?
The intestacy rules decide who inherits property, but they do not allow a parent to choose a guardian after death.
A parent can appoint a testamentary guardian through a valid will, subject to the rules governing parental responsibility and when the appointment takes effect.
Without an effective appointment, decisions about who should care for a child may need to be resolved by surviving people with parental responsibility or, where necessary, by the family court.
A will can also establish how inherited money should be managed for children and whether they should receive it at an age later than the intestacy age.
Do Children Receive Their Inheritance Immediately?
Children under 18 do not normally receive and control an intestacy inheritance immediately.
Their entitlement is held under statutory trusts until they reach the required age. The administrators or trustees manage the funds in the meantime.
The statutory rules do not take account of whether an individual child will be financially mature at 18.
A will can provide that children inherit at a later age, such as 21 or 25, and can include wider powers allowing trustees to use funds for education, maintenance and other needs.
Does Intestacy Avoid Inheritance Tax?
Dying without a will does not avoid Inheritance Tax.
The estate must still be valued, relevant gifts and assets must be identified and any tax due must be reported and paid through the estate-administration process.
The standard nil-rate band is currently £325,000. An additional residence nil-rate band of up to £175,000 may be available where qualifying conditions are met and a home passes to direct descendants. Transfers to a spouse or civil partner are generally exempt, subject to the applicable conditions.
The intestacy distribution may not use available tax reliefs as efficiently as a carefully planned will.
For example, assets may pass in a way that does not reflect the deceased’s estate-planning objectives or may create ownership and liquidity problems for the surviving family.
Valuing the Estate
Before letters of administration can be obtained, the administrator must identify and value the deceased’s assets and liabilities.
This may include:
• property;
• bank and savings accounts;
• investments;
• business interests;
• vehicles and valuable possessions;
• foreign assets;
• jointly owned property;
• life-insurance proceeds;
• pension death benefits;
• debts;
• funeral expenses; and
• significant lifetime gifts.
Even where no Inheritance Tax is payable, estate values may still have to be included in the probate application.
Professional valuations may be required for property, businesses, shares in private companies, jewellery or other substantial assets.
Paying Debts Before Beneficiaries
Relatives do not inherit the deceased’s gross assets without regard to liabilities.
The administrator must identify and settle the estate’s debts, funeral expenses, administration costs and tax liabilities before distributing the remaining estate.
If the estate is insolvent, creditors are paid according to the applicable statutory order. Beneficiaries may receive nothing.
An administrator who distributes the estate too early can risk personal liability if a creditor, tax liability or beneficiary later emerges.
How Long Does Intestate Administration Take?
The time required depends on the complexity of the estate.
A straightforward estate with clear assets and undisputed beneficiaries may be administered relatively efficiently. Delays can occur where there is property to sell, Inheritance Tax to calculate, foreign assets, missing relatives, family disputes or uncertainty about ownership.
Current government guidance states that probate applications are usually processed within 12 weeks after submission, although this does not represent the total time required to collect and distribute the estate.
The wider administration may continue for many months after letters of administration have been issued.
Can the Family Change the Intestacy Distribution?
Beneficiaries may sometimes agree to redirect all or part of an inheritance after the death.
A deed of variation can be used where the legal and tax requirements are satisfied. Changes intended to receive retrospective treatment for Inheritance Tax and Capital Gains Tax generally need to be completed within two years of the death.
Every beneficiary who is made worse off must agree.
A deed of variation cannot easily solve every problem. Minors and people lacking capacity cannot simply consent, and court approval may be required where their interests are affected.
It is usually safer and less expensive to make an appropriate will during lifetime than to rely on beneficiaries reorganising the estate afterwards.
Common Problems Caused by Intestacy
Dying without a valid will can result in:
• an unmarried partner receiving no automatic inheritance;
• a separated spouse inheriting despite the relationship having ended;
• stepchildren receiving nothing;
• children inheriting at 18;
• the family home having to be sold;
• relatives sharing an estate in proportions the deceased did not intend;
• no chosen executor or trustee;
• no testamentary guardian for young children;
• uncertainty about personal possessions;
• additional searches for entitled relatives;
• family disagreements and court claims; and
• missed opportunities for effective tax and succession planning.
The law provides a default distribution, but it cannot reflect every family structure or personal intention.
When Should a Will Be Reviewed?
A will should be reviewed after major changes such as:
• marriage or civil partnership;
• divorce or separation;
• beginning or ending a cohabiting relationship;
• the birth or adoption of a child;
• acquiring a home;
• starting or selling a business;
• receiving an inheritance;
• a significant change in wealth;
• the death of a beneficiary or executor; or
• changes to tax or family circumstances.
A will should also be checked periodically even where no obvious event has occurred.
Assets, relationships and the people best suited to act as executors or trustees can change over time.
Why Making a Will Provides Greater Control
A valid will allows you to identify who should inherit your estate and in what proportions.
It can also appoint executors, nominate guardians, make gifts to unmarried partners or stepchildren, provide for charities and establish trusts for younger or vulnerable beneficiaries.
A will does not remove the need for careful estate administration or guarantee that no claim will ever be made. It does, however, provide direct evidence of your intentions rather than leaving distribution to the statutory intestacy rules.
Without a valid will, the law decides who inherits, even where the outcome conflicts with your personal relationships or the promises you made during your lifetime.
Making and regularly reviewing a professionally drafted will can give your family greater clarity, reduce avoidable disputes and ensure that your estate is distributed according to a considered plan rather than a legal default.
Ergun Eren
Director / Licensed Conveyancer