Understanding Intestacy: What Happens When Someone Dies Without a Will?

As a Private Client Solicitor, one of the most important messages I can share is the value of having a valid, up to date Will in place. Unfortunately, many people put off making a Will, and when someone dies without one, their estate is distributed according to the Rules of Intestacy, a strict legal framework that may not always reflect their personal wishes.

This blog explains what intestacy is, who inherits under these rules, and why it’s so important to plan ahead.

What Is Intestacy?

Intestacy occurs when someone dies without leaving a valid will. This is typically known as someone who has died ‘intestate’ as opposed to dying ‘testate’. This might happen because:

When this happens, the estate or part of the estate is distributed according to the Rules of Intestacy Rules, which are set out in the Administration of Estates Act 1925 and were amended by the Inheritance and Trustees’ Powers Act 2014. These rules determine who is eligible to administer the estate and who inherits the deceased’s assets.

Who Inherits Under the Intestacy Rules?

The Intestacy Rules follow a fixed order of entitlement for how the estate assets are to be distributed based on the deceased’s family relationships. Below is a summary which illustrates how an intestate estate would typically be divided in different circumstances.

The rules summarised here apply to deaths which occur on or after 26 July 2023.

Married or civil partner without children

The spouse or civil partner inherits the entire estate.

It is particularly important to note that unmarried partners do not benefit under the intestacy rules, regardless of how long that relationship may have existed.

Married or civil partner with children

The spouse or civil partner inherits:

It is important to note that the term ‘children’ includes illegitimate and adopted children but not stepchildren.

No spouse or civil partner, but has children

The children inherit the estate equally between them. If a child has predeceased the person who has died, their share passes to their children (the grandchildren) in equal shares.

No spouse, children or grandchildren

The estate passes to other relatives in a strict order:

No surviving relatives

If no eligible relatives are found, the estate passes to the Crown (known as bona vacantia).

It can be very complicated if someone dies leaving no immediate family members. This may require extensive research to locate a beneficiary, which can be both timely and costly to the estate. We would always recommend that a detailed family tree search is conducted before distributing the estate of someone who has died intestate.

What if a person entitled to the estate is a minor or died before the deceased?

If any of the individuals entitled to benefit from an estate are not living at the date of death, but they left descendants who are, those descendants would generally inherit the share their parent would have received, had they survived. If the deceased beneficiary did not leave any surviving descendants, that share would instead pass to the remaining beneficiaries within the same category, or to the next category of relatives entitled under the rules of intestacy.

Where beneficiaries are under the age of 18 at the time of death, their share of the estate will usually be held on statutory trusts until they reach the age of 18, at which point they become entitled to receive their inheritance. If a child dies before reaching 18, their share will be redistributed among the other entitled beneficiaries.

Why Is Intestacy a Problem?

The Intestacy Rules are rigid and may not reflect modern family dynamics or personal preferences. Issues commonly arise where:

In these situations, resolving the estate can become complex, costly, and emotionally difficult for those involved.

How Can You Avoid Intestacy?

The best way to prevent intestacy is to have a professionally drafted will in place that clearly outlines your wishes for how your estate should be managed and distributed. It also allows you to:

Having a carefully drafted Will also allows you the option to ensure it covers a wide variety of situations to avoid potentially failed gifts passing to beneficiaries that you may not want to inherit. For example, you can choose what happens to a gift or share of the estate should the primary beneficiary die first.

As a Private Client Solicitor, I see first-hand the complications and distress that intestacy can cause grieving families. While it’s not a subject many people enjoy thinking about, having a Will in place is one of the most considerate and responsible steps you can take for your loved ones.

Additionally, regularly reviewing and updating your will ensures it continues to reflect your circumstances and wishes. It is easy to forget about your Will once it has been prepared. We recommend that you review your Will every five years to ensure it still reflects your current wishes.

If you’d like advice about making or updating a will, or if you’re dealing with the estate of someone who has died intestate, I’m always happy to have a conversation about how I can help.

Alternatively, for more information on what to think about what to include in a Will, you can read my blog on this here: What To Include In A Will l A Step-By-Step Guide l Blog l Nelsons