Dying Without a Will: The Intestacy Rules
Dying without a valid will is called dying intestate. When that happens, you do not choose who inherits your estate. Instead, a fixed set of legal rules decides, and the outcome can come as an unwelcome surprise to the people you care about most. This guide sets out how the intestacy rules work in England and Wales, who receives what, and the inheritance tax implications that often follow.
Scotland and Northern Ireland have their own intestacy rules, which differ from those explained here.
How the Intestacy Rules Work
The intestacy rules divide an estate according to the deceased’s family circumstances at the time of death. The two most important groups are a surviving spouse or civil partner, and children.
Surviving Spouse or Civil Partner, with Children
If you leave a spouse or civil partner and children, the estate is split as follows:
- The spouse or civil partner receives all personal possessions (chattels such as furniture, cars and jewellery)
- They receive the first £322,000 of the estate (the statutory legacy)
- They receive half of the remaining estate
- The children share the other half equally
If a child has already died, their own children (the deceased’s grandchildren) take that child’s share.
Surviving Spouse or Civil Partner, no Children
Where there is a surviving spouse or civil partner but no children, the whole estate passes to them.
Children, no Surviving Spouse or Civil Partner
If you leave children but no spouse or civil partner, your children inherit the entire estate in equal shares. They receive their inheritance at 18, although executors may pay for their maintenance or education before then.
No Spouse, Civil Partner or Children
With no spouse, civil partner or children, the estate passes in the following order:
- Parents
- Siblings, or their children if a sibling has already died
- Half-siblings
- Grandparents
- Uncles and aunts
- Half-uncles and half-aunts
- The Crown (if no relatives can be traced)
Who Gets Nothing
Who Administers an Intestate Estate
When someone dies without a will, there are no executors to carry out their wishes. Instead, the estate is administered by administrators, appointed by applying to the Probate Registry for a grant of letters of administration.
The order of priority for who can apply broadly mirrors the inheritance order above, starting with the spouse or civil partner, then children, then parents, and so on. Because the intestacy rules fix both the beneficiaries and the administrators, a family can end up with a person managing the estate whom the deceased would never have chosen.
The Inheritance Tax Consequences of Dying Intestate
Intestacy is not just a distribution problem. It can create a tax bill that a properly drafted will would have avoided.
Assets Passing to a Spouse are Exempt
Transfers between spouses and civil partners are exempt from inheritance tax (IHT) whatever the estate is worth, and the survivor can inherit the deceased’s unused nil-rate band and residence nil-rate band. For a married couple or civil partners, dying intestate is usually tax-neutral on the first death because the estate passes to the survivor.
Unmarried Partners Face a Tax Bill
There is no spousal exemption for unmarried couples. An unmarried partner who inherits under intestacy rules receives nothing at all, but one who receives assets under a will or by survivorship faces inheritance tax on anything above the £325,000 nil-rate band, at 40%. The residence nil-rate band is also unavailable because a partner is not a direct descendant.
Children Can Inherit the Home
Where there are children and a surviving spouse, the home typically passes to the spouse, so the residence nil-rate band can be preserved for the second death. But where there is no surviving spouse, children inheriting a family home outright can trigger issues around the residence nil-rate band if the home later passes out of the direct family line, and the children’s own inheritance tax position on their eventual estates is affected by what they receive.
Unexpected Beneficiaries and the Seven-Year Rule
An intestate estate can pass assets to relatives the deceased barely knew. Those relatives then own assets that sit in their own estates for inheritance tax purposes, whereas lifetime planning could have redirected the value more efficiently. The seven-year rule and lifetime exemptions that a will and gifting plan could have used are lost entirely.
Why a Will Usually Does Better
A will gives you control over all of these outcomes:
- You can leave the family home to a spouse outright, into a life interest trust, or to children, whichever suits your family and your tax position
- You can make use of trusts to protect a share for children from a previous relationship
- You can name the people you want to act as executors
- You can provide for an unmarried partner, stepchildren or friends, who are invisible to the intestacy rules
For a fuller discussion of what a will should cover and how to make one, see our guide to wills and estate planning. If you already have a will, the probate and estate administration guide explains what your executors will need to do.