When a person dies without leaving a valid will, they are said to have died intestate. In such cases, the rules of intestacy come into play. These are legal rules that determine who is entitled to inherit the estate, and they are strictly followed regardless of the deceased’s personal wishes or family relationships.
Understanding what happens when someone dies intestate is essential, especially for families with complex dynamics, cohabiting partners, or those who hold property as joint tenants or tenants in common.
AFG Law explains what it means to die intestate and how the deceased’s estate will be distributed under the law in England and Wales. We have a team of Private Client Solicitors who can assist those asking the question “what happens if you die intestate?”
What Does It Mean to Die Intestate?
To die intestate means to die without a valid will. A will is a legal document that outlines how a person’s estate, including money, property, and personal possessions, should be distributed after death.
If no such document exists, or if a will is deemed invalid, then the law takes over and decides who inherits what. The court will appoint an administrator to manage the deceased’s estate, which can lead to delays and higher legal costs. Additionally, if they have minor children, the courts will decide on guardianship, which may not align with their preferences.
The rules apply whether the deceased was in a marriage, civil partnership, or had children. It also applies where the deceased owned property with another person. The way that property is held, either as joint tenants or tenants in common can significantly affect inheritance.
What Happens If Someone Dies Intestate?
The intestacy process involves a series of legal steps:
1. Identifying the Estate
The estate includes all assets the person owned, such as:
- Property and land
- Bank accounts
- Investments
- Vehicles
- Other personal possessions
It also includes any debts and liabilities, which must be paid from the estate before any inheritance is distributed.
2. Applying for Letters of Administration
Since there is no executor named in a will, someone, usually a close family member, must apply for letters of administration to act as the personal representative. This gives them legal authority to manage the estate.
3. Establishing Who Is Entitled to Inherit
Once the estate is valued and debts are settled, the administrator distributes the remaining assets according to the rules of intestacy.
Who Inherits Under the Rules of Intestacy?
The intestacy rules follow a strict order of inheritance, depending on which relatives survive the deceased. The law does not consider the strength of emotional or financial bonds; it only considers legally recognised family relationships.
Spouse or Civil Partner
If the deceased was legally married or in a civil partnership, the spouse or civil partner has priority under the rules. The share they receive depends on whether there are children.
If there are no children:
- The husband, wife, or civil partner inherits the entire estate.
If there are children:
- The spouse or civil partner inherits:
- All personal possessions
- The first £322,000 of the estate
- Half of the remainder of what the estate is worth
- The other half is split equally among the children.
Importantly, unmarried partners (even if they lived together for many years) are not entitled to inherit under the intestacy rules.
Children
Children (including adopted children) inherit in equal shares if there is no surviving spouse or civil partner. If they are under 18, they do not immediately receive the money; instead, it is held in trust until reaching the age of 18.
Step children are not included under the intestacy rules unless they have been legally adopted. This often leads to unexpected outcomes where a blended family is involved.
Other Relatives
If the deceased had no spouse, civil partner, or children, the estate is distributed in the following order:
- Parents
- Brothers and sisters (or their children if they have died)
- Half-siblings
- Grandparents
- Aunts and uncles (or their children)
- Half-aunts and half-uncles
Each category must be exhausted before moving to the next. If multiple relatives exist within a group (e.g. several siblings), they inherit in equal shares.
No Surviving Relatives
If no surviving relatives fall within the categories listed by the intestacy rules, the estate passes to the Crown. This is known as bona vacantia. In such cases, the government takes control of the estate, and any future claims to it must go through the Bona Vacantia Division of the Government Legal Department.
Property Ownership: Joint Tenants vs Tenants in Common
How property is held between individuals is critical when someone dies intestate.
- Joint tenants: If the deceased owned property as a joint tenant with another person (usually a partner or spouse), their share passes automatically to the surviving joint tenant, regardless of the intestacy rules.
- Tenants in common: If the property was owned as tenants in common, the deceased’s share becomes part of their estate and is distributed according to the rules of intestacy. This can be particularly important in families where unmarried couples co-own a home.
Understanding how property is held is crucial when assessing the overall estate.
What Happens with Children Under 18?
When children inherit under the intestacy rules and are under the age of 18, their inheritance is typically held in a trust. The funds can be managed by the administrator or trustees and accessed for the child’s benefit, such as education or housing, until they turn 18.
This can cause difficulties if the child was financially dependent on the deceased but cannot directly access the funds until adulthood.
In addition to inheritance, the courts will make decisions on guardianship, which may not align with the deceased person’s preferences.
Can the Rules Be Challenged?
The rules of intestacy can lead to hardship, especially where close companions or step children are excluded. In some circumstances, it is possible to make a claim under the Inheritance (Provision for Family and Dependants) Act 1975.
This law allows certain people, such as unmarried partners, step children, or anyone financially dependent on the deceased, to apply to the court for reasonable financial provision. Each case is assessed on its own facts, and legal advice is essential.
How to Avoid Dying Intestate
To prevent these complications, the most effective step is to create a valid will. A will allows you to:
- Choose exactly who inherits your estate
- Provide for step children, unmarried partners, friends, or charities
- Decide how your personal possessions are distributed
- Name guardians for children under 18
- Make tax-efficient plans for large estates
A will also allows you to specify what should happen if beneficiaries die before you, and how jointly owned property should be dealt with.
Regularly reviewing your will, especially after key life events such as marriage, civil partnership, divorce, or buying property, ensures it continues to reflect your intentions.
How can AFG Law assist?
If you are looking to find a solicitor who specialises in Will and probate processes and can offer expert legal advice then our team at AFG Law are ready and on-hand to assist you.
For more information on dying intestate, making a Will, or if you have any queries surrounding the Will and probate process, please do not hesitate to get in touch with us today. We can be contacted via email at PrivateClientDept@afglaw.co.uk or via phone call at 01204920103.
AFG Law have multiple offices with specialist Will writing solicitors in Manchester, including Stockport, Bolton and Bury. We can also assist clients with their Will and Probate needs remotely.