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Atalaw Solicitors

If someone dies without a valid will in England or Wales, the intestacy rules decide who inherits, and they follow a fixed order. A surviving spouse or civil partner takes everything if there are no children. If there are children, the spouse takes the personal possessions, the first £322,000 and half of anything above that, with the other half shared equally between the children. With no spouse, the estate passes down a strict family line. Unmarried partners, however long the relationship, inherit nothing under the rules.

That last point is the one that causes the most hardship, and it is the one most people assume is not true.

The order of entitlement

The rules sit in the Administration of Estates Act 1925, as amended. Each category below only inherits if nobody in the category above survives.

Who survivesWho inherits
Spouse or civil partner, no childrenThe spouse takes the whole estate
Spouse or civil partner and childrenThe spouse takes chattels, £322,000 and half the rest, and the children share the other half
Children but no spouseThe children share everything equally
No spouse or children, but parentsThe parents share equally
Only brothers and sistersFull siblings share, with a nephew or niece taking a deceased sibling’s share
Only half brothers and half sistersHalf siblings share, again passing down to their children
GrandparentsGrandparents share equally
Aunts and unclesFull aunts and uncles share, then half aunts and uncles
Nobody in any categoryThe estate passes to the Crown

Children inherit at 18, so a minor’s share is held on trust until then. Grandchildren step into a deceased child’s share. The government’s inheritance checker for estates without a will walks through the order for a specific family.

Who the rules leave out

Unmarried partners are the obvious group. So are stepchildren who were never adopted, close friends, carers and charities. The law does not look at who was close to the person, only at legal status.

A spouse who was separated but not divorced still inherits in full. An ex-spouse, once the final order is made, inherits nothing. It is not uncommon for a long separated husband or wife to take the entire estate while a new partner of ten years receives nothing at all.

Assets held as joint tenants pass automatically to the surviving co-owner, outside the estate. So do most pensions and life policies written in trust or with a nomination. Check these first, because they can change the picture entirely.

A case that shows the gap

A couple in Palmers Green had lived together for fourteen years. The house was in his sole name because he bought it before they met. He died suddenly without a will. He had no children, and both his parents were alive.

Under the intestacy rules, his parents inherited the house. His partner had no automatic right to stay there. She had to bring a claim under the Inheritance (Provision for Family and Dependants) Act 1975, which she eventually settled for a share of the property. It took over a year and a good deal of distress with in-laws she had always got on with.

A two page will would have avoided all of it.

What an excluded person can do

The main remedy is a claim under the Inheritance (Provision for Family and Dependants) Act 1975. A cohabitant who lived with the deceased as a couple for at least two years immediately before death can claim, as can anyone who was being maintained by them. The claim must be issued within six months of the grant of letters of administration, although the court can extend that in some cases.

Cohabitant claims are limited to reasonable provision for maintenance, which is a lower standard than a spouse can claim. Expect a fight over what counts as reasonable. Keep bank statements, bills and anything showing shared finances, a discipline our guide on building a file that stands up in court sets out in another context.

Our explainer on how civil claims are allocated between tracks and our note on recent court and tribunal fee changes will help you think about cost.

How a will can fail without anyone noticing

Marriage revokes an earlier will unless it was made in contemplation of that marriage. The Law Commission has recommended changing this, but for now the rule stands. Plenty of people remarry in later life and never realise their will no longer exists.

Wills can also fail for lack of proper witnessing or for want of capacity. Our note on appointing executors and trustees where there is an Alzheimer’s diagnosis covers the capacity side, and our post on life interest trusts in wills explains a common way of protecting a partner while still providing for children. Planning for loss of capacity during life is separate, and our page on joint lasting power of attorney arrangements deals with that.

Administering an intestate estate

Without a will, nobody is appointed as executor. The person entitled to apply is identified by a priority order, starting with the spouse, and they apply for letters of administration rather than probate. Where a child under 18 benefits, two administrators are needed. Our probate solicitors in London can handle the application and the distribution.

Rental property complicates things. Tenancies continue and rent still has to be collected and accounted for, so our guide on documenting rent arrears properly and our landlord and tenant eviction services are worth knowing about, along with our plain English timeline of the Renters’ Rights reforms. Repair complaints do not stop because the landlord has died, which our housing disrepair solicitors in London can advise on, and business premises may carry lease deadlines our commercial lease solicitors in London can pick up.

Frequently asked questions

Does a cohabiting partner inherit without a will?
No. They must bring a claim under the 1975 Act, usually within six months of the grant.

Do stepchildren inherit under the intestacy rules?
Only if they were legally adopted. Otherwise they have no entitlement, though they may be able to bring a 1975 Act claim.

What happens if there are no relatives at all?
The estate passes to the Crown as bona vacantia, handled by the Government Legal Department.

Can the family agree to divide things differently?
Yes. Beneficiaries can vary the distribution by a deed of variation, usually within two years of death.

Make sure the rules are not deciding for you

If you have no will, or have married, separated or had children since you made one, your estate may not go where you expect. We will review your position and tell you plainly what would happen now and what a will would change. Speak to our solicitors in North London on 020 3581 9293 or email info@atalawsolicitors.com.

Atalaw Solicitors
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