Understanding Intestacy: What Happens When There’s No Will?

Intestacy is where a person dies, and their property or assets (in whole or in part) have not been disposed of by a valid Will.

Examples of how intestacies can arise include: the Deceased did not make a Will; the Will was invalid; or there was previously a valid Will, but it was subsequently revoked.

If no Will is found or any of the aforementioned situations apply, the following is a brief summary of how the rules of intestacy apply in England and Wales from 26 July 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 estate has a value of up to £322,000, 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, with the amount in excess of this being divided into two equal shares.
• The surviving spouse/civil partner will receive one share, and the children will receive the other share between them. The surviving spouse/civil partner will also receive all personal possessions of the deceased.

Where the deceased died leaving children but no surviving spouse/civil partner:

• The estate will pass to the children in equal shares.

Where the deceased died with no surviving spouse/civil partner and no children:

The estate will pass to the following categories of people in the below order of priority:

• Parents
• Brothers or sisters (if any siblings have predeceased leaving children, the children will receive their parent’s share)
• Half brothers or sisters (if any half siblings have predeceased leaving children, the children will receive their parent’s share)
• Grandparents
• Aunts and uncles (if any aunts or uncles have predeceased leaving children, the children will receive their parent’s share)
• Half aunts and uncles (if any half aunts or uncles have predeceased leaving children, the children will receive their parent’s share)
• If there is no one in the highest category of potential beneficiaries, the next category will be considered (and so on). Usually, there will be someone in the deceased's family who comes under one of the above categories but, if no living relatives can be found, then the estate will pass to the crown.

There are a few options to consider.

The quickest and cheapest way to resolve matters is often to contact the beneficiaries of the estate and ask whether they will agree to you receiving a share of the estate. If all parties agree, the arrangement can be formalised in a document such as a Deed of Variation.

If the parties cannot agree, an alternative approach would be to consider bringing a claim under the Inheritance (Provision for Family and Dependants) Act 1975. This is a claim where you seek provision from the estate due to the intestacy rules not making reasonable financial provision for you.

Reasonable financial provision means what is required for a claimant’s maintenance, commonly referred to as a “maintenance need.” This generally means what is necessary for a person to meet their daily living costs and is decided on a case by case basis. It is important to note that the Inheritance Act is not a means to achieve an equal distribution of the estate. In order to have a successful claim, you will need to prove your case by showing that you have a maintenance need.

Claims under the Inheritance Act are very fact specific and can be highly contentious. It is therefore advisable to take legal advice quickly to see whether you are eligible to bring a claim and to ensure your interests are protected. This is particularly important, as the deadline for bringing a claim is 6 months from the date of the Grant of Representation.