Intestate.

Dying Without a Will: The Rules of Intestacy

A person dies intestate when they die without leaving a valid will. The word intestacy refers to the legal rules that determine who may administer the estate and who is entitled to inherit.

The intestacy rules apply automatically. They do not take into account informal promises, family expectations or what relatives believe the deceased would have wanted.

A person may also die partially intestate, even if they left a valid will, because the will did not deal effectively with every asset or part of the estate.

This guide explains the intestacy rules in England and Wales.

Different succession laws apply in Scotland and Northern Ireland.

Why Making a Will Is Important

A valid will allows you to decide:

• who should administer your estate;
• who should inherit your money, property and possessions;
• whether unmarried partners, stepchildren, friends or charities should benefit;
• who should act as guardian for children under 18;
• how particular possessions should be distributed;
• whether assets should be held in trust;
• how business or farming interests should be managed;
• what should happen to digital assets; and
• whether inheritance tax planning should be considered.

Without a valid will, the law determines the beneficiaries and the order in which relatives may inherit.

Intestacy can create particular difficulties for unmarried couples, blended families, stepchildren, estranged relatives and people with business, overseas or complex property interests.

What Forms Part of the Intestate Estate?

The intestacy rules apply to assets forming part of the deceased's estate after payment of funeral expenses, administration costs, debts and taxes.

The estate may include:

• property owned solely by the deceased;
• the deceased's share of property held as tenants in common;
• money in sole bank and savings accounts;
• investments and shares;
• business interests;
• vehicles and personal possessions;
• money owed to the deceased;
• some insurance proceeds; and
• digital and intellectual property assets.

Not every asset passes under the intestacy rules.

Jointly Owned Property

Property owned as beneficial joint tenants will normally pass automatically to the surviving joint tenant by right of survivorship. It does not usually pass under the intestacy rules.

Where property is owned as tenants in common, the deceased's share forms part of their estate and passes under their will or the intestacy rules.

Land Registry records alone may not always establish the beneficial ownership. Trust documents, severance notices and the parties' intentions may need to be examined.

Joint Bank Accounts

Money in a joint bank account will often pass to the surviving account holder, but this is not automatic in every dispute.

Questions can arise about:

• who contributed the money;
• whether the account was opened for convenience;
• whether the survivor was intended to receive the balance;
• whether the money was held on trust; and
• whether there was financial abuse or undue influence.

Pensions, Life Insurance and Death Benefits

Some pension and life insurance benefits are paid directly to a nominated person or at the discretion of trustees and may not form part of the estate.

Nomination forms should still be reviewed because they may not be legally binding and can become outdated after separation, divorce or a change in family circumstances.

Who Can Administer an Intestate Estate?

Where there is no valid will, there is no executor. The person authorised to deal with the estate is called an administrator.

The person with the highest priority under the probate rules may apply for a grant of letters of administration.

The order will normally begin with:

• the surviving husband, wife or civil partner;
• adult children;
• parents;
• brothers and sisters of the whole blood;
• brothers and sisters of the half blood;
• grandparents;
• uncles and aunts of the whole blood;
• uncles and aunts of the half blood; and
• more remote relatives where applicable.

An unmarried partner does not have priority merely because they lived with the deceased or had a long-term relationship.

The administrator must be at least 18. Where several people have equal entitlement, up to four may be named on the grant.

Letters of Administration

A grant of letters of administration provides the administrator with formal authority to collect, manage and distribute the estate.

A grant may be required where the deceased owned:

• land or property in their sole name;
• a substantial balance with a bank or financial institution;
• shares or investments;
• a business interest; or
• other assets whose holder requires a grant before releasing them.

Some smaller estates can be administered without a grant. Each bank, investment provider and asset holder may apply its own release requirements.

Where there is no will, an application can normally be made online or using probate form PA1A.

Duties of an Administrator

An administrator is a personal representative and owes legal duties to the estate and its beneficiaries.

The administrator must:

• identify and secure the deceased's assets;
• identify valid debts and liabilities;
• value the estate accurately;
• deal with inheritance tax where required;
• apply for letters of administration where necessary;
• collect money and transfer or sell assets;
• complete tax returns for the deceased and estate where required;
• pay funeral expenses, debts, tax and administration costs;
• identify the correct beneficiaries;
• prepare estate accounts;
• distribute the estate according to the intestacy rules; and
• retain appropriate records.

An administrator who distributes assets to the wrong person or before dealing with a valid debt or claim may become personally liable.

Who Inherits Under the Intestacy Rules?

The distribution depends on which relatives survive the deceased and the value of the net estate.

A relative in a higher-ranking category normally prevents relatives in lower categories from inheriting.

Surviving Spouse or Civil Partner and No Children

Where the deceased leaves a surviving husband, wife or civil partner but no children or other descendants, the surviving spouse or civil partner receives the entire intestate estate.

This applies even where the couple were separated when the deceased died, provided they remained legally married or in a civil partnership and no final divorce or dissolution order had been made.

An estranged spouse may therefore inherit. At the same time, an unmarried partner may receive nothing automatically.

Surviving Spouse or Civil Partner and Children

Where the deceased leaves both a surviving spouse or civil partner and children or other direct descendants, the estate is divided according to a statutory formula.

The surviving spouse or civil partner receives:

• the deceased's personal chattels;
• the statutory legacy of £322,000, together with statutory interest where applicable; and
• half of the remaining estate.

The other half of the remaining estate passes to the deceased's children on the statutory trusts.

Example

If the net intestate estate is worth £500,000 and the deceased leaves a spouse and children:

• the spouse receives the personal chattels;
• the spouse receives the first £322,000;
• £178,000 remains;
• the spouse receives half of the remainder, which is £89,000; and
• the children share the other £89,000.

The spouse would therefore receive £411,000 plus the personal chattels, and the children would share £89,000.

If the net estate does not exceed the statutory legacy, the surviving spouse or civil partner will generally receive the entire intestate estate.

What Are Personal Chattels?

Personal chattels generally include tangible movable possessions used personally by the deceased, such as:

• furniture;
• clothing;
• jewellery;
• vehicles;
• pictures and ornaments;
• household items; and
• other personal possessions.

They do not generally include:

• money or securities;
• property used solely or mainly for business purposes;
• assets held solely as investments; or
• items held for another person.

Disputes can arise where valuable art, jewellery, vehicles or collections were acquired partly for investment or business purposes.

Children and Other Descendants

Where there is no surviving spouse or civil partner, the deceased's children inherit the entire estate equally.

For intestacy purposes, children generally include:

• biological children;
• legally adopted children; and
• in some circumstances, children whose legal parentage has been established through fertility or parental-order legislation.

Stepchildren do not inherit automatically unless they were legally adopted by the deceased.

Where a Child Died Before the Deceased

If a child died before the deceased but left children of their own, those grandchildren will normally take the share their parent would have received.

The same principle can continue through later generations.

Children Under 18

A child's inheritance will normally be held on statutory trust until the child reaches 18.

The trustees may have powers to use income or capital for the child's maintenance, education or benefit before that age.

If the child dies before becoming absolutely entitled, the destination of the inheritance will depend on the statutory trust provisions and the child's own circumstances.

Parents

If the deceased leaves no spouse or civil partner and no children or other direct descendants, the estate passes equally to the surviving parents.

If only one parent survives, that parent receives the whole estate.

Brothers and Sisters

If there is no surviving spouse or civil partner, no descendants and no surviving parent, the estate passes to brothers and sisters of the whole blood.

Whole blood means that the sibling shared both parents with the deceased.

If a whole-blood sibling died before the deceased but left children, those children may inherit their parent's share.

If there are no whole-blood siblings or their descendants, half-blood siblings and their descendants are considered next.

Grandparents, Uncles and Aunts

If there are no surviving relatives in the earlier categories, the estate may pass in the following order:

• grandparents;
• uncles and aunts of the whole blood or their descendants; and
• uncles and aunts of the half blood or their descendants.

Cousins may therefore inherit if they are the children of an uncle or aunt who died before the deceased.

What Happens if There Are No Entitled Relatives?

If no qualifying relative can be found, the estate passes to the Crown, the Duchy of Lancaster or the Duchy of Cornwall as bona vacantia.

Bona vacantia means ownerless property.

An entitled relative who is later identified may be able to make a claim to an estate administered as bona vacantia, subject to evidential requirements and time limits.

Unmarried Partners

An unmarried partner does not automatically inherit under the intestacy rules, regardless of:

• how long the couple lived together;
• whether they had children;
• whether they regarded themselves as common-law spouses;
• whether they contributed to household expenses; or
• whether the deceased intended them to inherit.

There is no general legal status of common-law husband or common-law wife in England and Wales.

A surviving cohabitant may nevertheless:

• receive jointly owned assets by survivorship;
• receive nominated pension or insurance benefits;
• have an existing beneficial interest in property;
• make a claim for reasonable financial provision from the estate; or
• benefit from an agreement or trust made during the deceased's lifetime.

Anyone living with a partner outside marriage or civil partnership should make a valid will if they want that partner to inherit.

Stepchildren and Foster Children

Stepchildren and foster children do not automatically inherit under the intestacy rules unless they were legally adopted by the deceased.

They may be able to bring a claim against the estate in some circumstances, particularly where the deceased treated them as a child of the family or financially maintained them.

Separated and Divorced Spouses

A spouse or civil partner may still inherit under intestacy where the couple had separated. Still, the marriage or civil partnership had not legally ended.

Once a final divorce or dissolution order has been made, the former spouse or civil partner does not inherit under the intestacy rules merely because of the former relationship.

A former spouse who has not remarried may still be eligible to make a claim under the Inheritance (Provision for Family and Dependants) Act 1975 in particular circumstances.

Children Born Outside Marriage

A child does not lose intestacy rights merely because their parents were not married.

Where legal parentage is established, the child will generally have the same entitlement as another child of the deceased.

Evidence of parentage may be required where the relationship is disputed or not recorded on official documents.

Adopted Children

A legally adopted child is generally treated as the child of the adoptive parent for inheritance purposes.

Adoption normally ends the child's automatic intestacy rights through the birth family, subject to limited exceptions and the precise legal arrangements.

Complex issues can arise with step-parent adoptions, overseas adoptions and wills or trusts made before adoption.

Posthumous Children

A child conceived before the deceased's death but born afterwards may be entitled to inherit as though they had been born during the deceased's lifetime.

Modern fertility arrangements, stored embryos, surrogacy and parental orders can create more complex questions of legal parentage and succession.

Partial Intestacy

A partial intestacy occurs where a valid will exists but does not dispose of the whole estate.

This may happen where:

• a gift fails and the will does not provide an alternative;
• a beneficiary died before the deceased;
• the will deals with particular assets but contains no effective residuary clause;
• an asset was acquired after the will was prepared;
• a trust fails; or
• part of the will is invalid.

The valid provisions of the will continue to operate, while the undisposed part passes under the intestacy rules.

Marriage and an Existing Will

Marriage or civil partnership will normally revoke an existing will unless the will was made in contemplation of that particular marriage or civil partnership.

A person who marries and does not make a replacement will may therefore die intestate, even though they previously prepared a valid will.

Wills should be reviewed after marriage, civil partnership, separation, divorce, the birth of children, or any other major change in circumstances.

Finding Out Whether a Will Exists

Before assuming that the deceased died intestate, reasonable searches should be made for a will and any codicils.

Possible enquiries include:

• searching the deceased’s home and personal papers;
• contacting their solicitor or accountant;
• checking with banks or document-storage providers;
• asking close relatives;
• searching the National Will Register or other registration services;
• checking whether a will was deposited with the Probate Service; and
• examining earlier probate records where relevant.

Finding only a photocopy does not necessarily mean that the estate must be treated as intestate. It may be possible to apply to prove a copy where the original has been lost, although evidence will be required.

Valuing the Estate

Before applying for letters of administration, the administrator must estimate the estate's value.

This involves identifying:

• property and land;
• bank and savings accounts;
• investments and shares;
• business and partnership interests;
• vehicles and valuable possessions;
• lifetime gifts that may be relevant for inheritance tax;
• jointly owned assets;
• trust interests;
• foreign assets;
• debts owed to the deceased; and
• the deceased’s debts and liabilities.

Professional valuations may be needed for property, businesses, shares, artwork, jewellery or other significant assets.

Inheritance Tax

Dying without a will does not remove inheritance tax liability.

The administrator must determine whether the estate:

• is an excepted estate;
• must be reported fully to HM Revenue and Customs;
• qualifies for spouse or civil partner exemption;
• qualifies for charitable exemption;
• can claim the residence nil-rate band;
• can use unused allowances transferred from a deceased spouse or civil partner;
• qualifies for business or agricultural relief; or
• must pay inheritance tax before the grant is issued.

Intestacy can produce a less tax-efficient result than a carefully drafted will, particularly for unmarried couples, business owners and families with trusts or complex assets.

Income Tax and Capital Gains Tax During Administration

The estate may receive income or dispose of assets during the administration period.

The administrator may need to deal with:

• income tax owed by the deceased before death;
• tax on interest, rent or dividends received by the estate;
• capital gains tax on assets sold for more than their probate value;
• tax returns for the administration period; and
• tax information for beneficiaries.

Tax should be considered before assets are sold or transferred, particularly where property or investments have increased in value since the death.

Debts and Insolvent Estates

The deceased's valid debts must be paid before beneficiaries receive their inheritance.

Debts may include:

• mortgages and secured loans;
• credit cards and personal loans;
• utility and care fees;
• income tax and inheritance tax;
• business debts;
• benefit overpayments;
• funeral expenses; and
• legal liabilities or court judgments.

Relatives do not normally become personally responsible for the deceased's sole debts merely because of the family relationship.

However, liability may continue where the relative was a joint borrower, guarantor or otherwise personally bound.

Insolvent Estates

An estate is insolvent where its assets are insufficient to pay all debts and expenses.

Strict statutory rules govern the order in which debts and expenses must be paid. The administrator must not distribute assets to relatives or choose preferred creditors without legal authority.

Professional advice is strongly recommended before administering an insolvent estate because an incorrect payment may create personal liability.

Protecting the Administrator

An administrator should consider steps to reduce the risk of unknown debts or beneficiaries emerging after distribution.

These may include:

• placing statutory notices for creditors;
• conducting bankruptcy searches against beneficiaries;
• obtaining missing-beneficiary searches;
• using specialist genealogists;
• obtaining indemnities where appropriate;
• considering missing-beneficiary insurance; and
• retaining a reasonable reserve before final distribution.

Creditor notices can protect an administrator who distributes properly after the notice period, but they do not extinguish the underlying debt or prevent a creditor pursuing a beneficiary who received estate assets.

Claims Against an Intestate Estate

The intestacy rules can sometimes fail to make reasonable financial provision for a surviving family member or dependant.

The Inheritance (Provision for Family and Dependants) Act 1975 allows specified people to apply to the court for financial provision from the estate.

Potential applicants may include:

• a surviving spouse or civil partner;
• a former spouse or civil partner who has not remarried or entered a new civil partnership;
• a person who lived with the deceased as though married or in a civil partnership for the required period;
• a child of the deceased;
• a person treated by the deceased as a child of the family; and
• a person who was being maintained wholly or partly by the deceased.

The applicant does not automatically succeed merely by falling within an eligible category. The court considers the financial provision made by the intestacy rules and all relevant circumstances.

Time Limit for a Claim

A claim under the 1975 Act should normally be issued within six months of the date on which the grant of representation was made.

The court can allow a late application, but permission is discretionary and should not be assumed.

Anyone considering a claim should obtain legal advice before the estate is distributed.

Property Ownership Claims

A person may have rights in an asset that exist independently of the intestacy rules.

For example, an unmarried partner may claim a beneficial interest in a home based on:

• an express declaration of trust;
• financial contributions;
• a common intention concerning ownership;
• proprietary estoppel;
• an agreement or promise; or
• another trust or property principle.

Such a claim concerns ownership of the property rather than an inheritance from the deceased's estate.

The asset's true beneficial ownership should be resolved before the administrator distributes the estate.

Deeds of Variation

Adult beneficiaries may sometimes agree to redirect all or part of an inheritance using a deed of variation.

A variation may be used to:

• provide for an unmarried partner or stepchild;
• equalise benefits between family members;
• redirect assets to children or grandchildren;
• make a charitable gift;
• resolve a family arrangement; or
• improve the inheritance tax or capital gains tax position.

For specified tax treatment, the variation will normally need to be completed within two years of death and contain the required statements.

All people whose entitlement is reduced must normally agree. An adult cannot simply vary the entitlement of a child or person lacking capacity without court approval.

Renouncing or Disclaiming an Inheritance

A beneficiary may decide not to accept an inheritance.

The legal and tax consequences depend on whether the beneficiary:

• disclaims the inheritance before accepting it;
• redirects it through a deed of variation;
• gives it away after receiving it; or
• is bankrupt or receiving means-tested benefits.

A disclaimer does not normally allow the beneficiary to choose who receives the asset instead. The intestacy rules then determine the next entitlement.

Advice should be obtained before refusing or redirecting an inheritance.

Funeral Arrangements

The personal representatives have the primary legal responsibility for arranging disposal of the deceased's body. However, practical arrangements are often made by close family members.

Where there is no will, disputes can arise among relatives over burial, cremation, ashes, religious requirements, and the location of the funeral.

A dispute may require urgent legal advice because funeral decisions cannot usually wait for lengthy court proceedings.

When Can the Estate Be Distributed?

An administrator should not distribute the estate until:

• the assets and liabilities have been identified;
• necessary valuations have been obtained;
• letters of administration have been issued where required;
• inheritance tax and other taxes have been dealt with;
• debts and administration expenses have been paid;
• the beneficiaries have been correctly identified;
• potential claims have been considered;
• property disputes have been resolved; and
• appropriate estate accounts have been prepared.

Distributing too early can expose the administrator to claims from creditors, omitted beneficiaries or people entitled to bring proceedings against the estate.

Estate Accounts

Estate accounts should provide a clear record of:

• assets at the date of death;
• money received during administration;
• debts and expenses paid;
• income and capital gains;
• tax paid or reclaimed;
• sales and transfers of assets;
• interim distributions;
• the calculation of each beneficiary's entitlement; and
• the final balance for distribution.

Residuary beneficiaries are generally entitled to appropriate information about the administration and their entitlement.

Disputes Between Administrators and Beneficiaries

Disputes may concern:

• delay in obtaining the grant;
• failure to provide information or accounts;
• incorrect valuations;
• sale of property at an undervalue;
• personal use of estate assets;
• failure to identify beneficiaries;
• unequal or premature distributions;
• conflicts of interest;
• excessive administration expenses; and
• failure to pursue money owed to the estate.

The court can make orders requiring information, replacing or removing a personal representative, directing the administration and compensating the estate for loss caused by breach of duty.

Estates with Overseas Assets or Relatives

An intestate estate may involve more than one country where:

• the deceased lived abroad;
• they were domiciled in another country;
• they owned overseas property;
• beneficiaries live outside the UK;
• a foreign succession regime applies; or
• tax is payable in more than one jurisdiction.

The succession rules that apply to land can differ from those that apply to movable assets. A grant issued in England and Wales may not be sufficient to deal with property abroad.

Specialist cross-border probate and tax advice should be obtained.

Information to Gather After an Intestate Death

Before speaking to a probate solicitor, it may help to gather:

• the death certificate;
• marriage, civil partnership and divorce documents;
• birth and adoption certificates;
• details of children and other relatives;
• property title documents;
• bank and investment statements;
• pension and insurance information;
• business records;
• tax papers;
• details of debts and funeral costs;
• evidence of lifetime gifts;
• joint ownership documents;
• any copy or draft will; and
• information about possible dependants or claims.

Do not destroy old wills, handwritten notes, correspondence or financial records. They may be relevant to the administration or a later dispute.

How an Intestacy and Probate Solicitor Can Help

A probate solicitor may assist with:

• confirming whether a valid will exists;
• identifying who is entitled to administer the estate;
• applying for letters of administration;
• valuing the estate;
• inheritance tax reporting and payment;
• selling or transferring property;
• identifying beneficiaries and missing relatives;
• administering trusts for children;
• dealing with insolvent estates;
• preparing estate accounts;
• distributing the estate;
• claims by unmarried partners or dependants;
• property ownership disputes;
• deeds of variation;
• removing or replacing an administrator;
• cross-border estates; and
• disputes between relatives and beneficiaries.

Check Who Inherits

The Government provides an online service to help identify who may inherit where a person dies without a will:

Check who can inherit when someone dies without a will

The checker provides general guidance and does not replace legal advice where the estate includes disputed relationships, trusts, jointly owned property, overseas assets or potential claims.

Finding an Intestacy Solicitor

Administering an intestate estate can be more complicated than distributing an estate under a clearly drafted will. The administrator must identify the correct beneficiaries and follow a fixed statutory order, even where it does not reflect the deceased's likely wishes.

Use the search facility at the top of this page to find a probate and intestacy solicitor who can confirm the legal entitlements, apply for letters of administration and deal with the estate correctly.

This guide provides general information about intestacy and estate administration in England and Wales. It does not constitute legal or tax advice and should not be relied upon as a substitute for advice about a particular estate.