What are the rules of intestacy?

When someone dies without a Will, this is known as dying intestate, and your estate must be distributed following the rules of intestacy, but what are the rules of intestacy? 

The intestacy rules are dictated by law in the country where the person was domiciled. Unfortunately, understanding who inherits under the rules of intestacy is not always as straightforward as it may seem. 

Many people do not understand the importance of creating a Will to ensure their estate is not left to the rules of intestacy. People often assume that their closest loved ones will inherit even when they die without a Will, but that is not always the case. With changing family dynamics and the rise in blended and cohabiting families, creating a Will is now even more important than ever to ensure your estate is distributed as you wish. 

The number of cohabiting couples and parents without a Will is particularly worrying, as it is more probable that their wishes will not be followed if they were to die intestate.  

The rules of intestacy

Under the rules of intestacy in England and Wales, if the deceased has a spouse or civil partner and the estate (in the sole name of the deceased) is not worth more than £322,000, the spouse or civil partner is entitled to everything. Joint assets pass by survivorship unless specific arrangements over those joint assets have been made. 

Statutory Legacy sum 

When the estate is worth more than £322,000 and the person who died has children, the children will receive half of the remaining amount over the £322,000 threshold, and the spouse or civil partner is entitled to the other half. For example, if an estate is worth £522,000 (in the sole name of the deceased), the spouse or civil partner would inherit £422,000 (£322,000 plus £100,000 from half of the remaining estate) and any children would inherit £100,000 split equally between them. 

This amount of £322,000 is known as the Statutory Legacy sum, and this was changed in July 2023. Previously, the sum was £270,000; if the death was between 6 February 2020 and 25 July 2023, this amount still applies, and the spouse/civil partner receives the first £270,000 of the estate and half of anything else. If the date of death is on or after 26 July 2023, the Statutory Legacy sum of £322,000 applies. 

Order of priority 

No matter the value of the estate, the spouse or civil partner inherits all of the Deceased’s personal belongings when there is no Will. 

If the person who died did not have a spouse or civil partner but did have children, the estate would be equally split between the children, or their issue (the deceased’s grandchildren) if they have pre-deceased. 

In England and Wales, the order of priority after children is: 

• Living parents

• Full-blood siblings

• Half-blood siblings

• Grandparents

• Aunts/uncles

• Half-blood aunts/uncles 

In Scotland, great-grandparents, great uncles/aunts, and half-blood great uncles/aunts are also entitled after half-blood aunts and uncles. Scotland also has a different legal system where Prior Rights and Legal Rights also apply. These rights are in place to ensure the surviving spouse/civil partner and children are not disinherited from an estate, but similar to estates in England and Wales, assets may not go to where the immediate family thinks they should. 

If a relative has passed away, their descendants are entitled to inherit on their behalf. For example, a cousin may inherit if the aunt/uncle has already passed away, or a niece/nephew would inherit if a sibling had pre-deceased. 

If the deceased had no surviving relatives, the estate would pass to the Crown (or the relevant Duchy of Lancaster or Cornwall if appropriate). 

The UK government website has a handy tool in which they ask a series of questions to help you identify who is entitled to inherit when someone dies without making a Will. 

Administering an intestate estate 

When someone dies without a Will, it ultimately makes the estate administration process more complicated.  The estate is at risk of being distributed in a way that goes against the deceased's wishes. Also, it causes more time, stress, and cost for the Administrator dealing with the estate. Often, it can be difficult to track down beneficiaries; without a Will, their details may not be easily accessible. 

If you are presented with what appears to be an intestate estate, it’s important to thoroughly search for the Will to ensure the deceased didn’t leave one.  

You should check: 

• Their home

• The deceased’s bank

• Contact local Solicitors and Will Writers in their area to see if they hold a Will

You can also try using a Will search service, such as The National Will Register, to see if a Will has been registered.