What are the rules of intestacy?

Intestate is a word used to describe someone who died without a will.

When someone writes a will, they have the opportunity to say who they want to inherit their estate and how much each of them should get. Many people choose to leave everything to their spouse, civil partner or children, but extended family, friends and charities are also popular choices.

When someone dies intestate, there are no legally-binding wishes regarding what should happen to their estate. In cases where there isn’t a will, the rules of intestacy come into play.

The rules of intestacy are a set of laws in England and Wales that define what should happen to someone’s estate when they die intestate. They usually work reasonably well for traditional families whose circumstances are fairly straightforward, but things can be more difficult for unmarried partners, cohabitees and step-children.

When someone dies without a will, their next of kin inherits their estate. The rules of intestacy set out who would be the legal next-of-kin after someone’s death when there is no will. The rules also determine how much the next-of-kin would be able to inherit.

An ‘estate’ is all the money and property someone owned on their death, after the payment of any debts and liabilities. 

To help you apply the rules of intestacy to your situation, we’ve provided examples for some of the most common scenarios below. If you’d prefer to speak to a probate specialist over the phone, please give us a call on 020 3695 1713.

Married or in a civil partnership with no children or grandchildren

The surviving spouse or civil partner would be entitled to the whole of the estate as long as they survive for 28 days. If the spouse or civil partner dies within 28 days, the rules of intestacy treat them as having not survived. If this happens, the estate is instead distributed to the next category of beneficiary under the rules of intestacy (see below). 

The term ‘spouse’ is a word used to describe the husband or wife, in relation to their married partner. It includes people who have separated. However, divorcees cannot inherit from an ex-spouse’s estate.

Married or in a civil partnership and has children

The surviving spouse or civil partner inherits everything up to the value of £322,000. If the estate’s value is over £322,000, the partner also inherits half of everything that remains. The rest is then shared equally between their children.

For example: Peter was married to Jane and had four children. When he died without a will, his estate was worth £500,000. Susan inherited all of his personal possessions and the first £322,000 of the estate, which left £178,000. Susan also inherited 50% of this, giving her a total of £411,000. The remaining £89,000 was then shared equally between their four children, who received £22,250 each.

Note: If one or more of the children has already died, grandchildren or great-grandchildren can inherit their parent’s share.

Unmarried and has children or grandchildren

The estate is shared equally between the children, not including any step-children. If any of the children has already died, grandchildren or great-grandchildren can inherit their parent’s share.

For example: Mandy was unmarried and had two children, Daniel and John. When she died without a will, her estate was worth £600,000. Daniel inherited £300,000 but, because John had already passed away, his £300,000 share was split equally between his three children.

Note: If John didn’t have children or grandchildren of his own, his share would also have been inherited by Daniel.

Unmarried and has no children

If someone dies intestate and they were unmarried and had no children, their close relatives inherit the estate in the following order of priority:

• Parents

• Brothers and sisters with the same parents as the person who died – if any brothers and sisters have already died, their share will pass to their children

• Half brothers and half sisters who share one parent with the person who died – if any half brothers or sisters have already died, their share will pass to their children

• Grandparents

• Aunts and uncles whose parents are the grandparents of the person who died – if any aunts and uncles have already died, their share will pass to their children

• Half aunts and uncles with one parent who is the grandparent of the person who died – if any half aunts and uncles have already died, their share will pass to their children

No. The rules of intestacy are there as a kind of safety net to try and make sure money flows to the right people. However, since the rules are around 100 years old, they don’t really take into account more modern family dynamics – such as unmarried couples or parents with step-children.

As well as having a say on who inherits your estate, there are a few other important reasons to make a will, including:

• Choosing the most suitable person to handle your estate after your passing 

• Appointing legal guardians for any children under 18

• Leaving gifts and messages to your loved ones

• Writing funeral wishes to help your family plan a personal send-off

• Making an inventory so your family know where your money is – which can then be kept with your will

Under the rules of intestacy, the following people do not stand to inherit anything:

• Unmarried partners: only married partners or partners in a civil partnership can inherit when someone dies without a will

• Cohabitees: those who lived with the person who has died are not entitled to inherit anything under the rules of intestacy, even if they’ve cohabited for many years

• Step-children: step-children can only inherit if they have been legally adopted by the person who died

• Close friends: people often choose to leave something to close friends in their will, but they do not inherit anything under the rules of intestacy

• Other family members: any lower priority relatives under the rules of intestacy, such as grandchildren if the spouse and children are still alive

Children only inherit under the rules of intestacy if either:

• The person who died has no living spouse or civil partner – in which case everything is shared equally between the children

• Or the estate of the person who died is worth more than £322,000 (or £250,000 if the death was before 6 February 2020 but after 1 October 2014) – in this scenario, the spouse or civil partner inherits the first £322,000 plus half of anything over that amount, then the children get an equal share of the rest (the spouse or civil partner also inherits all personal possessions and is entitled to interest from the date of death).

In some cases, yes. If all the beneficiaries named in a will have died and there aren’t any substitutes named then a ‘partial intestacy’ can apply. This means that the estate which cannot pass under the will, will instead pass to the next-of-kin under the rules of intestacy. 

‘Beneficiaries’ are people who stand to inherit from an estate. 

These ‘partial intestacy’ situations can be easily avoided by people writing their wills. All they need to do is make sure that they include substitute beneficiaries i.e. state who they would want to inherit if the original beneficiary dies before them.  

• The rules of intestacy are a set of laws that decide what happens to someone’s estate if they die without a will.

• If the person who died is married and has no children or grandchildren, the surviving spouse or civil partner inherits the whole estate, providing they survive by 28 days.

• If the person who died is married and has children, the first £322,000 (or £250,000 if the death was before 6 February 2020 but after 1 October 2014) is inherited by their spouse or civil partner, plus half of anything over that value. The rest is then shared equally between the children of the person who died. The spouse or civil partner also inherits all personal possessions and is entitled to interest from the date of death.

• Unmarried partners, step-children and friends don’t inherit under the rules of intestacy.

• Making a will is the best way to make sure you have a say on what happens to your estate.