If you die without a valid Will in England and Wales, you don’t get to decide who inherits your estate. Instead, a fixed set of rules, known as the intestacy rules, makes that decision for you. Current estimates suggest well over half of UK adults don’t have a valid Will in place, which means the intestacy rules apply far more often than most people realise. For many families, the result is very different from what the person would have actually wanted.
What is intestacy, exactly?
Intestacy is the legal term for dying without a valid Will, either because you never wrote one, or because a Will you did write turns out not to be legally valid (more on how that can happen below). When it applies, your estate is distributed according to the Administration of Estates Act 1925, as updated by later legislation, rather than according to your own wishes.
Who inherits under intestacy?
The rules follow a strict order of priority, and they don’t take your relationships or wishes into account, only legal status matters.
- Married or in a civil partnership, with children: your spouse or civil partner receives the first £322,000 of the estate (known as the “statutory legacy”), plus all personal belongings, plus half of whatever’s left above that. The other half of the remainder is split equally between your children.
- Married or in a civil partnership, no children: your spouse or civil partner inherits everything, in full.
- Unmarried, with a partner: your partner inherits nothing at all, regardless of how long you were together, how many children you have together, or whether you owned a home jointly as tenants in common. This is one of the most common, and most painful, surprises families face.
- No spouse, civil partner, or children: the estate passes to parents, then siblings (and their children if a sibling has died), then half-siblings, then grandparents, then aunts and uncles, in a fixed order of priority.
- No surviving relatives at all: in the rare event nobody in the priority list survives you, your estate passes to the Crown, known as “bona vacantia.”
A worked example
Imagine a married couple in Exeter with two adult children and a combined estate worth £500,000. If the husband dies intestate, his wife receives the first £322,000, all personal possessions, and half of the remaining £178,000 (£89,000), a total of £411,000. The remaining £89,000 is split equally between the two children, so £44,500 each. That might sound reasonable in isolation, but if the estate had instead been £1 million, the children’s combined share would rise to £339,000 while the surviving spouse, who may still be paying a mortgage or needs the money to live on, receives comparatively less flexibility than a Will could have provided, since none of it is at her discretion to redirect.
Why this catches so many families out
Three situations come up again and again in my work across Exeter and Mid Devon:
- Unmarried couples. There’s no such thing as “common law marriage” in England and Wales, however long you’ve lived together, however many bills you share, your partner has no automatic right to inherit anything if you die without a Will. Their only recourse is a claim under the Inheritance (Provision for Family and Dependants) Act 1975, which is a contested court process, expensive, uncertain, and usually settled for far less than a Will would simply have provided outright.
- Blended families. If you’ve remarried and have children from an earlier relationship, intestacy can mean your current spouse inherits everything up to £322,000 to the exclusion of your children from your first marriage, not because that’s what you’d have chosen, but because that’s what the formula produces. A stepchild you raised from infancy but never formally adopted inherits nothing under intestacy, no matter how close that relationship was.
- Cohabiting elderly parents. I sometimes see this with couples who’ve been together for decades but never formally married, often because an earlier marriage ended and they didn’t feel the need to remarry. Under intestacy, none of that history matters; only legal marital status does.
What about my children if I have young kids?
Without a Will, you also don’t get to choose who looks after your children if something happens to both parents. The court decides who becomes their guardian, and while the court will consider the child’s welfare, it may not land on the person you’d have picked, and the process can take longer and cause more uncertainty for your children at an already difficult time.
Can a Will I already have become invalid?
Yes, this is a common trap. Marriage or civil partnership automatically revokes an existing Will in England and Wales, unless the Will was specifically written in contemplation of that marriage. So it’s entirely possible to believe you have a valid Will in place, while in fact you’re legally intestate because of a life event you didn’t connect to your paperwork.
What about pensions, life insurance, and jointly owned property?
Not everything you own is actually distributed under intestacy, some assets pass outside your estate entirely, regardless of whether you have a Will:
- Pensions are usually paid out at the scheme’s discretion, based on a nomination (or “expression of wish”) form you fill in separately with the provider, not according to your Will or the intestacy rules. It’s worth checking these are up to date, since people often forget to update them after a divorce or new relationship.
- Life insurance written in trust pays out directly to the named beneficiaries, bypassing the estate and intestacy rules altogether.
- Property owned as “joint tenants”, the common arrangement for married couples, passes automatically to the surviving joint owner by a rule called survivorship, regardless of what a Will says. Property owned as “tenants in common,” however, does form part of the estate and is subject to intestacy or your Will.
This is worth knowing because it means intestacy doesn’t necessarily leave a surviving partner with nothing, even where they weren’t married, but it also means these arrangements need checking individually, since assuming they’re “covered” without verifying can be just as risky as assuming a Will exists when it doesn’t.
Just how common is dying without a Will?
Estimates consistently suggest that somewhere around 60% of UK adults don’t have a valid Will in place, a figure that includes both people who’ve never written one, and people whose Will has been invalidated by a later life event without their realising, as above. That means intestacy isn’t a rare case; for a large proportion of families, it’s the rule that actually applies, not the exception.
The fix is simpler than people expect
Writing a Will isn’t just for people with complicated estates – it’s about making sure straightforward decisions (who inherits, who’s the executor, who looks after the kids) are actually yours to make, rather than defaulting to a formula that takes no account of your actual family. A properly drafted Will overrides every one of the intestacy outcomes above.
If you don’t currently have a Will, or you’re not certain whether a life event may have invalidated one you already have, it’s worth an hour of your time to put that right. I offer free home visits and online consultations across Exeter, Cullompton, Tiverton and the surrounding area, with clear, fixed-fee pricing from the outset.
Frequently asked questions
Does my spouse automatically inherit everything if I die without a Will?
Only if you have no children (or grandchildren). If you have children, your spouse receives the statutory legacy (currently £322,000), personal possessions, and half the remainder, the other half goes to your children.
What happens to my house if I die intestate?
Your home forms part of your estate and is distributed under the same intestacy rules as any other asset. If it’s owned jointly with a spouse as “joint tenants,” it typically passes to them automatically outside the estate, but if you’re unmarried or own the property as “tenants in common,” this protection may not apply, which is worth checking specifically.
Can I write my own Will to avoid intestacy?
You can, as long as it meets the legal requirements for validity, but DIY Wills are a common source of errors that can inadvertently trigger intestacy anyway or litigation because they’re ambiguous. See our guide on whether you need a solicitor to write a Will for more detail.
If I’m unmarried, is there anything I can do to protect my partner besides a Will?
A Will is the most reliable protection, but reviewing how property is owned (joint tenants vs tenants in common), and checking pension and life insurance nomination forms name your partner directly, both help too, ideally alongside a Will rather than instead of one.