Most people have a rough sense of what they'd like to happen to their estate when they die. Most people also don't have a will.
If you're in that gap — knowing what you want but not yet having written it down — this guide is important reading. Because in England and Wales, dying without a will doesn't mean your wishes are respected. It means a set of rules largely unchanged since 1925 decides everything instead.
Those rules are called the intestacy rules, and they are rigid, impersonal, and often produce outcomes entirely at odds with what the person would have wanted.
1 What Does "Intestate" Mean?
When someone dies without a valid will, they die intestate. Their estate is then distributed according to the intestacy rules set out in the Administration of Estates Act 1925, as updated by the Inheritance and Trustees' Powers Act 2014.
The rules apply in full when there is no will at all. They also apply partially when a will exists but fails to cover part of the estate — for example, if a beneficiary dies before the testator and there is no substitution clause.
Dying intestate does not mean your estate is frozen or confiscated. It means the law distributes it for you — without any reference to your relationships, your intentions, or your wishes.
2 The Intestacy Rules: Who Inherits What
The intestacy rules follow a strict priority order. Only if there are no surviving relatives in a higher category does the estate pass to those in the next.
| Your situation | Who inherits |
|---|---|
| Married / civil partnership, with children | Spouse gets all belongings + first £322,000. Half of everything above that goes to spouse; other half split equally between children |
| Married / civil partnership, no children | Spouse or civil partner inherits the entire estate |
| Unmarried — even long-term relationship | Partner receives absolutely nothing. Estate passes to children, then parents, then siblings |
| No surviving relatives | Entire estate passes to the Crown (bona vacantia) |
The Full Succession Order (No Spouse)
| Priority | Who Inherits |
|---|---|
| 1st | Children (equally, or grandchildren if a child has died) |
| 2nd | Parents (equally if both survive) |
| 3rd | Siblings of the whole blood (or their children) |
| 4th | Siblings of the half blood (or their children) |
| 5th | Grandparents (equally) |
| 6th | Aunts and uncles of the whole blood (or their children) |
| 7th | Aunts and uncles of the half blood (or their children) |
| Final | The Crown (bona vacantia) |
3 The Cohabiting Partner Problem
This is the most urgent and most commonly misunderstood aspect of intestacy law in England and Wales — and it affects more people every year as cohabitation continues to rise.
If you live with a partner but are not married or in a civil partnership, they have absolutely no right to inherit anything from your estate under the intestacy rules. It does not matter how long you've been together, whether you share a home, or whether you share children. In the eyes of the law, an unmarried partner is a legal stranger to your estate.
Your estate would pass to your children. If you have none, to your parents. Then your siblings. A partner of thirty years could be left with nothing while distant relatives inherit an estate they had no part in building.
Unlike Scotland, which offers a limited court remedy for cohabiting partners under the Family Law (Scotland) Act 2006, England and Wales has no equivalent provision. There is no application an unmarried partner can make. There is no court discretion. The rules simply do not recognise them.
If you are cohabiting in England and Wales, making a will is the single most important financial step you can take.
4 The £322,000 Threshold — What It Actually Means
The statutory legacy — the first £322,000 a surviving spouse receives — sounds substantial. But context matters enormously, particularly in areas where property values are high.
Consider a couple with a jointly owned home worth £600,000, modest savings, and two children, when one spouse dies without a will:
The estate
Half the family home (£300,000) plus any other assets in the deceased's name.
What the spouse receives
All personal possessions, the £322,000 statutory legacy (but the estate is only worth £300,000, so they receive all of it), plus half of anything above £322,000. In a larger estate — say £700,000 — the spouse receives £322,000 plus half the remaining £378,000 (£189,000), while the children share the other half.
The result
The surviving spouse now co-owns the family home with the children. This creates complexity, potential disputes, and in some cases pressure to sell — rarely what either spouse would have intended.
5 What Happens to Children Under Intestacy?
Children inherit their share of the estate outright when they reach 18. Until then, their share is held by administrators on their behalf. There is no flexibility here — a will can specify that children inherit at 21 or 25, or that their share is held in trust for their education, housing, or welfare. Intestacy offers none of this.
Which Children Are Included?
- All biological children — whether born within or outside marriage
- Legally adopted children
- Children conceived before death but born afterwards
- Stepchildren who have not been legally adopted have no automatic right to inherit
6 What Happens to the Family Home?
The family home is often the most significant and most complicated asset in an intestate estate — particularly when the surviving spouse does not inherit the whole of it.
Where a spouse inherits only a partial interest, they may be able to exercise a right to have the property appropriated to satisfy their entitlement — meaning they can claim the house instead of the cash equivalent, if its value falls within what they're entitled to receive. For larger properties, this right may not fully resolve the situation.
Joint Tenancy vs Tenancy in Common
Not everything you own is subject to the intestacy rules. How property is owned matters:
- Joint tenancy your share passes automatically to the surviving co-owner (right of survivorship), regardless of any will or intestacy rules
- Tenancy in common your share forms part of your estate and is subject to the intestacy rules. It does not automatically pass to the surviving co-owner
Many couples assume they hold their home as joint tenants when they actually hold it as tenants in common — particularly if the property was purchased with unequal contributions. If you're unsure, check your title deeds or speak to a conveyancer.
7 Real-World Scenarios: How Intestacy Plays Out
Scenario 1: Married Couple With Children, Larger Estate
Situation
Rachel and Tom are married with two teenage children. Tom dies without a will. His share of the family home is worth £350,000. He also has savings of £80,000.
What happens
Tom's estate: £430,000. Rachel receives all personal belongings, the £322,000 statutory legacy, and half the remaining £108,000 (£54,000). Total: £376,000. The children share the other £54,000 — £27,000 each, held until they turn 18.
The lesson
Rachel and the children now jointly own Tom's share of the house. A will leaving everything to Rachel would have avoided this entirely.
Scenario 2: Cohabiting Couple, No Children
Situation
Mark and Sophie have lived together for eight years in a flat Mark owns. Mark dies without a will, leaving savings of £65,000 and personal belongings. Mark's parents are both alive.
What happens
Sophie receives nothing. Mark's entire estate passes to his parents in equal shares. Sophie has no legal standing under the intestacy rules and no court remedy available in England and Wales.
The lesson
A will naming Sophie as sole beneficiary would have taken less than an hour to make.
Scenario 3: Single Parent With Young Children
Situation
Priya is a single mother with two children aged 7 and 10. She dies without a will, leaving a flat worth £280,000 and savings of £22,000.
What happens
Both children inherit equally — £151,000 each, held until they turn 18. There is no named guardian — a court must decide. There is no ability to delay or structure the payment.
The lesson
A will would have named a guardian, specified a trusted adult to manage the inheritance, and allowed funds to be held in trust until a more appropriate age.
8 Probate in an Intestacy
When someone dies without a will in England and Wales, their estate still usually requires a legal process — specifically, a Grant of Letters of Administration rather than a Grant of Probate (which applies where there is a will). The person appointed to administer the estate is called an administrator rather than an executor.
The order of priority for who may apply to be administrator broadly follows the intestacy rules — the spouse first, then children, then other relatives. Administering an intestate estate is generally more complex, more time-consuming, and more open to family disagreement than dealing with a well-drafted will.
9 What a Will Changes
The intestacy rules will distribute your estate to someone. But they cannot do any of the following — and a will can:
- Protect your partner by naming them as a beneficiary regardless of marital status
- Leave your estate entirely to your spouse without the children receiving a simultaneous share
- Specify when children inherit trusts, age conditions, and flexible provisions for their benefit
- Name a guardian so a court doesn't decide who raises your children
- Leave gifts to friends or stepchildren anyone outside the rigid legal hierarchy
- Leave a charitable legacy and potentially reduce your estate's inheritance tax bill
- Name your executor making probate faster and cleaner for your family
- Express your funeral wishes providing clarity for your family at the worst possible time
Don't leave your estate to the rules
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10 Frequently Asked Questions
The statutory legacy for a surviving spouse or civil partner is currently £322,000. They also receive all personal chattels. Anything above £322,000 is split: half to the spouse, half divided equally between the children.
No — in England and Wales, an unmarried partner has no right to inherit anything under the intestacy rules, regardless of how long you've been together. Unlike Scotland, there is no court remedy available. A will is the only protection.
No — stepchildren who have not been legally adopted have no automatic right to inherit under the intestacy rules in England and Wales. Only biological and legally adopted children are included.
Your entire estate passes to the Crown — a process called bona vacantia. The Crown may have discretion to make payments to dependants or others with a moral claim, but this is not guaranteed. A will ensures your estate goes where you want it to.
It depends on how the property is owned. Property held as joint tenants passes automatically to the surviving owner via the right of survivorship — outside of the intestacy rules. Property held as tenants in common forms part of your estate and is subject to intestacy.
Possibly. Under the Inheritance (Provision for Family and Dependants) Act 1975, certain people — including former spouses, cohabiting partners of at least two years, and financial dependants — can apply to court for reasonable financial provision from the estate. This is a complex and uncertain process and is not a substitute for a will.
It is the legal authority granted by the Probate Registry to an administrator to deal with an intestate estate. It is the equivalent of a Grant of Probate (which applies when there is a valid will) but applies when there is no will or named executor.
Under intestacy, a child's share is held on their behalf until they turn 18, at which point they receive it outright — with no conditions or flexibility. A will allows you to specify a different age, add conditions, or hold funds in a flexible trust for their benefit in the meantime.
Related Guides
Legal References
- Administration of Estates Act 1925 — The primary intestacy legislation for England and Wales
- Inheritance and Trustees' Powers Act 2014 — Updates to the intestacy rules, including the current £322,000 threshold
- GOV.UK: Intestacy — Who Inherits If Someone Dies Without a Will — Official government guidance
- Inheritance (Provision for Family and Dependants) Act 1975 — Family provision claims