What if I have no Will?

Dying without a Will not only can lead to more complications and extra work for those who have to deal with your estate but can also lead to the wrong people benefiting from your estate and those whom you wanted to benefit losing out altogether.

If you die without having made a valid Will then you will be regarded as having died “intestate” and rules laid down by the law, known as the intestacy rules, will dictate who is likely to benefit from your estate. We will look at these in a little more detail shortly.

From a purely practical point of view, dying intestate has a number of undesirable consequences. These can include:

• no control by you over how your estate is distributed and who gets what;
• no certainty as to who will look after your estate and deal with your affairs;
• often more work for those who are left with the responsibility of dealing with your affairs;
• problems for unmarried couples or same sex couples not in a civil partnership;
• property can pass to a spouse from whom you are separated but not divorced;
• property may not go to the children of a partner with whom you are living but not married;
• you may pay more inheritance tax than you need to;
• property may have to be sold to pay beneficiaries at the expense of another; and
• if you have no close relatives and you are not married, the your whole estate could go to the Crown

Even if you have made a Will, the rules of intestacy may still apply to your estate, either in whole or in part. Thus, your Will may fail because, for example, it has not been validly made or if you have failed to dispose of the whole of your estate. Normally including a clause disposing of the residue of your estate (that is to say, everything not otherwise disposed of by the Will) is going to prevent parts of your estate from failing to be disposed of, but it does highlight the need to ensure that your Will is validly made in the first place.

The rules of intestacy

If a person dies without a valid Will then the rules of intestacy will be used in deciding who inherits their estate. Please note that the detailed provisions of the rules do change from time to time – the ones set out below applying to a death after 1st February 2009 – so do not assume that the rules below will always be the ones that apply. If the person died before then the intestacy rules current at the date of death Will apply. Also you should be aware that these rules apply to intestate estates in England and Wales – the rules for Scotland and Northern Ireland are different. If in doubt, contact YourWill so that we can advise you fully.

Who inherits under an intestacy can seem complicated since it depends not only upon who survives the deceased but also upon whether the deceased was married or in a civil partnership and whether they had children at the relevant time. To help you understand this we have produced an Intestacy Flowchart – click on the image to view the flowchart as a pdf.

The intestacy rules envisage four separate sets of circumstances potentially applying to someone who dies without making a Will, namely:

1Married with children
note that those who are separated are treated for the purposes of these rules as if they were still married

2Married with no children
but with parents and/or brothers and sisters

3Married with no children
but with no parents or brothers and sisters alive

4Single, widowed or divorced
note but not just separated – which would count as married.

1. Married with Children

If you are married or in a civil partnership and you have children then the following rules will apply:

Your spouse/civil partner gets:

1. your personal items – e.g. household items, jewellery and cars – but not business items;
2. the first £250,000 of your estate; and
3. a life interest in half of the remainder of the estate – in other words a right to receive the interest on any capital but not the capital itself

Note that the spouse/civil partner must survive the deceased for 28 days. If the spouse/civil partner dies before the end of that 28 day period then the estate will pass if the spouse/civil partner had not survived the deceased person.

Your children (but not your step children) get:

1. the other half of the remainder of the estate outright on reaching the age of 18 or marrying before that; and
2. the other half of the remainder after the death of the spouse or civil partner

Note that if there is more than one child, then each child will be entitled to an equal share. If a child has predeceased the intestate then their estate will not receive a share but if they have died leaving children (or grandchildren) of their own then the child will take the share the parent would have taken had they been alive, and if more than one in equal shares.

2. Married with no children

If you are married or in a civil partnership and you do not have children then the following rules will apply:

Your spouse/civil partner gets:

1. your personal items – e.g. household items, jewellery and cars – but not business items;
2. the first £450,000 of your estate; and
3. half of any excess over £450,000 outright.

Note that the spouse/civil partner must survive the deceased for 28 days. If the spouse/civil partner dies before the end of that 28 day period then the estate will pass if the spouse/civil partner had not survived the deceased person.

Your parents or if they are not living your brothers and sisters get:

1. Balance of the excess over £450,000

Note that the surviving parents will get the excess first. Only if neither parent survives will the estate pass to brothers and sisters (who must have shared the same two parents as the intestate) and if they have predeceased the intestate leaving children, then those children will take in equal shares the share which their parent would have taken.

3. Married or in a civil partnership with no children, parents , brothers or sisters

If you die leaving a spouse or civil partner and and you have no children, parents, brothers or sisters and there are no children of any brothers or sisters still living, the your spouse/civil partner will get everything.

4. Single, Widowed or Divorced

If you are single, windowed or divorced (note separated but not divorced counts as married for these purposes) then your estate will be go as follows:

1. to your children,
2. if there you have no children, then to your parents,
3. if your parents have both predeceased you, then to your brothers or sisters,
4. if no brothers and sisters, then to your half-brothers and half-sisters,
5. if no half-brothers or half-sisters, then to grandparents,
6. if no grandparents, then to aunts and uncles,
7. if no aunts and uncles, half-aunts and half-uncles,
8. if no half-aunts and half-uncles, to the Crown.

Note that in all cases if there is more than one person in any group, then they take equally between them, that if the members of any of the groups other than grandparents have predeceased the intestate then their children will take equally the share their parent would have taken and that if any member of any of the groups is under the age of 18 their share will be placed in trust until they reach the age of 18 or marry at an earlier age.

It is worth noting in particular:

• children means direct descendants of the deceased person – so includes grandchildren and great-grandchildren – but does not include step children. Note however, that the deceased did not have to be married to the mother or father of the child;
• adopted children are treated for the purposes of intestacy as being the children of the deceased rather than the children of their natural parents;
• if the deceased was co-habiting with someone else, (i.e. they were not married and had not entered into a civil partnership) then their partner will not inherit under the intestacy – they would have to make an application under the Inheritance (Provision for Family and Dependants) Act 1975 on the basis that “reasonable financial provision” has not been made for them (for more information on this see the YourWill Factsheet entitled Claims against an estate. It is worth bearing in mind that these claims can be time-consuming and costly, so it is far better to provide for the co-habitee by Will.
• if the deceased owned a property jointly with another person as joint-tenants (as opposed to tenants-in-common) then that property will not fall into the estate for the purposes of the £250,000 and £450,000 limits referred to above.