What is Intestacy?

/ wills and probate

Intestacy occurs when an individual dies without a legally valid Will that dictates the distribution of their assets or property.

Situations that lead to intestacy include:

  • the deceased did not make a Will

  • the existing Will was deemed invalid

  • a previously valid Will was later revoked

  • some of the terms of a valid Will are themselves invalid and fail, causing an intestacy or partial intestacy

In England and Wales, a significant portion (roughly two-thirds) of individuals die each year without a current, valid Will and the reasons for this vary. Some people simply delay creating one, others believe they don't require it, and some fail to update their Wills after marriage, unaware that marriage revokes prior Wills. Regardless of the cause, these individuals die intestate, and the distribution of their assets is then governed by the "rules of intestacy." These rules outline how the deceased's estate is allocated to surviving relatives after all debts, liabilities, funeral costs, and estate administration expenses are settled.

Who inherits when the intestacy rules apply?

The following is a simplified breakdown of the intestacy rules in England and Wales, effective from July 26, 2023:

Where the deceased died, leaving a surviving spouse / civil partner and no children – the estate will pass to the surviving spouse / civil partner in full.

Where the deceased died, leaving a surviving spouse / civil partner and children -

  • If the estates value is £322,000 or less, the surviving spouse / civil partner receives the whole estate

  • If the estate exceeds £322,000, the surviving spouse  / civil partner will receive the first £322,000 plus half of the remaining balance. The children of the deceased then divide the other half equally (if more than one). The surviving spouse/civil partner also receives all the deceased’s personal possessions.

Where the deceased died leaving children but no surviving spouse / civil partner – the estate is divided equally among the children.

Where the deceased died with no surviving spouse / civil partner and no children – the estate is distributed to the following relatives in this order

  • Parents

  • Siblings (or their children, if the sibling(s) has died)

  • Half-siblings (or their children, if the half-sibling(s) has died)

  • Aunts and uncles (or their children, if the aunt(s) / uncle(s) has died)

  • Half aunts and uncles (or their children, if the half aunt(s) / uncle(s) has died)

If no beneficiaries exist in the highest priority category, the next category is considered, and so on. If no living relatives are found, the estate goes to the Crown. Often people beleive the government or the Crown keep this money, but in practice it is always bequethed to charity. 

What do I inherit if I do not fall under one of these categories?

It's important to note that the intestacy rules do not recognise unmarried partners (cohabiting couples) or stepchildren. Consequently, these individuals will not inherit under these rules, irrespective of their relationship with the deceased.

This can create significant issues, especially considering the increasing prevalence of non-traditional family structures. The rise of unmarried and cohabiting couples by 25.8% over the past decade highlights this growing concern.

To ensure that your wishes are honoured and your loved ones are protected, we strongly advise creating a valid Will that explicitly states your intended beneficiaries is essential.

If you would like to discuss preparing your Will, please do not hesitate to contact any member of our Wealth Management & Taxation Team.