Intestacy and Dying without a Will

The rules of intestacy are based on legal and biological relationships, not on who the deceased was closest to or what they may have said they wanted. That can produce difficult outcomes, especially in modern family arrangements.

For example:

• an unmarried partner has no automatic right to inherit
• stepchildren are excluded unless they were legally adopted
• friends, carers, charities and wider family members by marriage are not recognised
• a separated spouse who was never formally divorced may still have inheritance rights

Who inherits depends on which relatives survive the deceased. If there is a surviving spouse or civil partner, the position will also depend on whether there are any children. If there is no surviving spouse or civil partner, the estate passes through a fixed order of priority that begins with children, then parents, siblings, grandparents and more distant relatives.

Where there are no qualifying relatives at all, the estate may pass to the Crown as ‘bona vacantia’. That outcome is unusual, but it shows how rigid the system can be when there is no valid Will in place.

If a person dies leaving a spouse or civil partner as well as children, the surviving spouse does not necessarily receive the whole estate. Under the current rules, the spouse or civil partner receives the deceased’s personal possessions, a statutory legacy of £322,000, and half of the remaining estate and the other half is divided between the children.

If there are no children, the surviving spouse or civil partner usually inherits the whole estate. Where there is no surviving spouse or civil partner, children will usually inherit the estate outright in equal shares, subject to the statutory rules for minors.

One of the main differences between an estate with a Will and one without is that there is no executor chosen by the deceased. Instead, the Probate Registry appoints an administrator, and the right to apply follows its own legal order of priority.

The administrator must usually apply for Letters of Administration rather than a Grant of Probate. From that point onward, the estate still needs to be collected in, valued, reported to HMRC where necessary, and distributed properly.

Administering an intestate estate often takes longer than dealing with an estate where there is a Will. There is usually more paperwork, less flexibility and greater scope for disagreement about who is entitled and in what shares.

There is also a practical risk for the administrator. If the estate is distributed incorrectly, or if a beneficiary is overlooked, the administrator may be personally liable for the mistake.

The intestacy rules are strict, but there are some situations in which the outcome may still be challenged or adjusted. For example, beneficiaries may sometimes agree to alter the distribution by a Deed of Variation, provided the legal requirements are met and all affected adults agree.

In other cases, a person who has not been properly provided for may have a claim under the Inheritance (Provision for Family and Dependants) Act 1975. That may be relevant for a surviving cohabiting partner, a child, or another person who was being financially maintained by the deceased. These claims depend on the facts of each case and are subject to strict time limits, so early legal advice is important if you are considering making a challenge.

Not everything owned by the deceased will necessarily pass under the intestacy rules. Some assets may pass automatically outside the estate, depending on how they were owned or nominated.

For example, property held as beneficial joint tenants will usually pass automatically to the surviving owner by survivorship. Joint bank accounts may do the same, although disputes sometimes arise about beneficial ownership. Pension death benefits, life policies with nominated beneficiaries, and assets already held in trust may also fall outside the intestacy rules.

At TLW Solicitors, we can advise families and administrators on the practical and legal issues that arise when someone dies without a valid Will, including questions about who is entitled to inherit, applications for Letters of Administration, the administration of the estate itself and any related claim that may need to be considered.

We can help with:

• advice on who is entitled under the rules of intestacy
• applications for Letters of Administration
• support with administering an intestate estate
• advice where family structures or entitlement are unclear
• Deeds of Variation
• related claims under the Inheritance Act 1975
• related matters involving Wills, probate and contentious probate

If someone has died without a Will, it is important to understand how the intestacy rules apply and what steps need to be taken before the estate is distributed.