Understand the steps you’ll need to take when someone has died without a will, or ‘intestate’.
What is intestacy?
When someone dies without a will, their estate is divided up according to standard rules, known as intestacy law.
As set out in the Inheritance and Trustees’ Power Act, the rules determine who inherits what based on family connections. The rules don’t take into account the closeness of your relationships, or who is most in need.
Different rules apply in Scotland, so jump to our intestacy in Scotland section to find out more.
If a close relative or friend dies without a will, you can apply to become the administrator of their estate. This means you’ll value the estate, settle any debts and distribute inheritances according to the intestacy rules. You can skip to our administering an estate section to find out how it works.
- Need help administering the estate? Download our free probate checklist from Which? Legal to help you through the process.
The intestacy rules determine how the estate of someone who dies without a will is distributed.
The rules will allocate your estate to your family members in a strict order, depending on which relatives you leave behind.
Usually, your spouse or civil partner will inherit the bulk of your estate (though unmarried partners won’t inherit anything).
The following cases show how the intestacy rules apply in England and Wales.
Married or in a civil partnership AND has children:
The husband, wife or civil partner keeps all the assets (including property), up to £270,000, and all the personal possessions, whatever their value.
The remainder of the estate will be shared as follows:
- the husband, wife or civil partner gets an absolute interest in half of the remainder
- the other half is then divided equally between the surviving children
If a son or daughter (or other child where the deceased had a parental role) has already died, their children will inherit in their place.
Married or in a civil partnership but has NO children:
Their spouse will receive all personal possessions and the proceeds of the estate.
Unmarried AND has children or grandchildren:
The children will receive the proceeds of the entire estate when they turn 18. If there is more than one child, each will receive an equal share.
If the child is deceased, grandchildren or great-grandchildren can inherit their parent’s share.
Adopted and biological children are treated equally.
Unmarried with NO children:
The entire estate will go to the following relatives, in this order:
- Their parents;
- If parents are deceased, to their brothers and sisters (with full siblings coming before half-siblings);
- If they have no siblings or surviving parents, to their grandparents;
- If grandparents are also deceased, to uncles and aunts or their children.
Unmarried with no living relatives
The entire estate will go to the Crown.
The rules on intestacy in Scotland are different to those in England and Wales.
A surviving spouse or civil partner is entitled to ‘prior rights‘. This includes a share in the family home up to a value of £473,000, assuming it is in Scotland and the partner was a resident in it at the time of death. It also includes furniture up to a value of £29,000 and other moveable assets up to £50,000 (if you have children) or £89,000 (no children).
Whatever is left of the estate will then be divided up according to ‘legal rights’, which are shared between your spouse and any children, or among other immediate family.
If you have no spouse, your estate is shared among your children. If you have neither spouse nor children, your estate is distributed among your immediate family according to rules set out in the Succession (Scotland) Act.
When someone dies without a will, an administrator will be appointed to wind up their estate – usually the next of kin or a close relative.
To become the administrator, you’ll need to submit an application to the Probate Registry for a ‘grant of representation’. The process is similar to that followed by executors of wills – we explain the steps in our guide to grant of probate.
First off, you’ll need to value the estate. You’ll then need to complete a probate application form and the relevant inheritance tax form. After this, you submit your application and swear an oath. You’ll also need to pay the probate fee.
Keep in mind that as an administrator, you’ll need to abide by the intestacy rules and divide up the estate as required by law.
In Scotland, a relative who assumes this role is called the ‘executor-dative’.
Where there are no surviving relatives, HM Treasury will be responsible for dealing with the estate.
- Need help with probate? Download our free checklist from Which? Legal to help you through the process.
When is a will invalid?
Just because someone has written a will doesn’t necessarily mean it’s still valid when they die.
Certain actions, such as getting married, will over-ride a pre-existing will, so it’s important to review wills periodically.
If a will exists, but is deemed invalid, the estate will be treated as intestate and divided according to the intestacy rules (as above).
Make sure your will is in order: how to make a will
Bona vacantia – unclaimed estates
When a deceased person has no known relatives, their estate is passed to the Crown. These assets are known as ‘bona vacantia’ – ownerless goods.
If you believe you’re entitled to a share of an estate held by the Crown, you can search for it on the government’s unclaimed estates list.
- When you make a claim on a bona vacantia estate within 12 years from the date its administration was completed, you’ll also be paid interest on your share.
- You can still claim your share for up to 30 years from the date of death, but no interest will be paid.
To claim, you’ll need to send a family tree to the government’s Bona Vacantia Department (BVD), showing how you’re related to the deceased. If the BVD believes your claim may be valid, it will ask for additional evidence, which could include a birth certificate and ID documents.
The BVD will need to be satisfied that, on balance, you’re related to the deceased and entitled to a share in their assets.
If the BVD has already accepted another relative’s claim, you’ll need to make your claim to that person instead.
Risks of dying without a will
Dying without a will may inadvertently disinherit the people closest to you. Common scenarios include the following:
- Unmarried partners will never benefit if you die intestate, even if you live together. The only way to make sure your estate is left to your partner is to get married (or enter a civil partnership) or to write a will.
- Step-children or foster children cannot inherit from your estate unless you explicitly provide for them in a will.
- In England and Wales, any previous will is invalidated when you marry. Unless you make a new will, your estate will be divided according to the intestacy rules. This means your new spouse will inherit the majority of your assets, potentially leaving nothing for your children.
- The rules don’t take people’s needs into account. If another person is dependent on you, they could be cut off if the rules don’t allow them to inherit.
- Your estate could end up being passed to a distant relative, or estranged family member.
To choose what happens to your estate, and make sure your loved ones receive their share, you can write a will. We explain what you need to do in our guide on how to make a will.