What happens if you die without a Will

The intestacy rules are a default, not a safety net

If you die without a valid Will, the law decides who gets what. The rules are set out in statute, they are the same for everybody in England and Wales, and they take no account whatever of what you would have wanted.

Nothing you said, wrote in a letter, or told the family over Christmas counts. Nor does need: a rule that divides an estate by relationship cannot see that one child is comfortable and another is struggling, or that a house is somebody's home.

Dying without a Will is called dying intestate. It is worth knowing that a Will can also fail — if it was never validly signed and witnessed, for example — in which case the same rules apply as if there had never been one.

Who inherits, and in what order

If you leave a husband, wife or civil partner and no children, they inherit everything.

If you leave a husband, wife or civil partner and children, the estate is split. Your spouse takes your personal possessions, then a fixed sum set by Parliament — known as the statutory legacy, and reviewed from time to time, so check the current figure on GOV.UK — and then half of whatever is left. Your children share the other half between them, and a child's share is held until they are 18.

If there is no surviving spouse or civil partner, the estate passes down a fixed order: children first, and the children of a child who died before you take that child's share; then parents; then brothers and sisters of the whole blood, or their children; then half-brothers and half-sisters, or their children; then grandparents; then uncles and aunts of the whole blood, or their children; then half-uncles and half-aunts.

If nobody in that list survives, the estate passes to the Crown. It is rarer than the newspapers suggest, but it happens.

Why an unmarried partner gets nothing

There is no such thing as a common-law husband or wife in England and Wales. However long you have lived together, whatever you call each other, and whether or not you have children together, an unmarried partner is not on the list above and inherits nothing under the intestacy rules.

Stepchildren you never legally adopted are in the same position, and so is a close friend, a carer, or a charity you supported for thirty years.

The one thing that often rescues a surviving partner is how a home is owned rather than anything to do with intestacy. Property held as joint tenants passes automatically to the survivor, outside the estate. Property held as tenants in common does not — that share passes under the rules above, which is how a surviving partner ends up owning a house jointly with their late partner's children.

There is a court process — under the Inheritance (Provision for Family and Dependants) Act 1975 — by which somebody who was financially maintained by the deceased can ask for provision from the estate. It is a court claim, with a strict time limit of six months from the grant, and it is slow, costly and uncertain. It is not an inheritance; it is litigation instead of one.

Marriage, divorce and separation change everything

Marrying or entering a civil partnership revokes any Will you already have, unless that Will was expressly made in expectation of that particular marriage. People who remarry in later life and assume their old Will still stands are one of the most common ways an estate ends up intestate.

Divorce works differently. It does not revoke your Will, but your former spouse is treated as having died before you, so gifts to them fail and their appointment as executor falls away. If they were your only beneficiary, the estate may end up passing under the intestacy rules after all.

Separation does nothing at all. Until a final order of divorce is made, a husband or wife you have not lived with for years is still your spouse for these purposes and still inherits first. That is the single most painful outcome the intestacy rules produce.

The things a Will does that intestacy cannot

It lets you appoint your own executors — the people who actually deal with everything — rather than leaving the job to whoever is entitled to apply in a statutory order.

It lets you name guardians for children under 18, which is the reason many parents make a Will at all and something the intestacy rules cannot do.

It lets you leave particular things to particular people: a specific gift to a friend, a sum to a grandchild, something to a charity. It lets you provide for a partner you never married, and it lets you record why somebody has been left out.

And it lets you hold a young or vulnerable beneficiary's share on trust rather than handing it over outright at 18, which is what intestacy does whether or not it is a good idea for that particular person.