A Will is a document by which a person communicates his or her intentions for what should happen to their assets after they have died. But what happens if there is no will?

If a person dies without making a Will, then a series of rules dictate how his or her assets should be passed to others. These rules are known as the laws of intestacy.

In a nutshell, the rules of intestacy place the deceased’s relatives into a hierarchy, and whoever is most senior in that hierarchy generally inherits the estate. It is perhaps easiest to view the laws of intestacy as creating rules about how high up a ladder the deceased ‘s relatives are allowed to climb, and whoever can climb the highest will generally inherit the estate. It is possible for more than one person to stand on the same rung of the ladder, in which case they will share the estate in equal portions. For example, if a deceased’s children inherit under the laws of intestacy, they will each receive an identical pot.

The hierarchy is as follows: –

• Spouse or civil partner (provided they survive the Deceased by more than 28 days).
• The deceased’s natural and adopted children*
• The deceased’s parents
• Brothers and sisters*
• Half-brothers and half-sisters*
• Grandparents
• Aunts and Uncles (whole blood)*
• Aunts and Uncles (half-blood)*
• The Crown / Duchy of Lancaster / Duke of Cornwall, depending on the location.

(* = if any member of these groups, who otherwise would receive provision, died before the Deceased, then his/her share will be divided equally amongst his/her own children, if he/she had any)

There are also some special rules that might apply.

As of 26 July 2023, if the estate is worth more than £322,000, and the deceased has a spouse or civil partner and a child or children, then the first £322,000 and the deceased’s personal effects pass to the spouse or civil partner. The remaining assets are divided into 2 equal pots. The first pot still passes to the spouse or civil partner. The second pot is divided equally amongst the natural children.

If a group of people inherit under the laws of intestacy (for example the deceased’s natural children), but one or more of the group died before the deceased, then the equal share that should have passed to them will move on a generation to their natural children. If they had no children, then the pot is shared amongst the surviving siblings.

The laws of intestacy do not make any provision for the unmarried partner. Whilst the rules do allow adopted children to be treated as though they are natural children, step-children receive no provision whatsoever. Our solicitors can sometimes assist by way of an Inheritance Act claim or a claim to prove a constructive trust instead, but it is unfortunate that the laws do not automatically make provision here. Grandchildren will not inherit anything unless their parent, a child of the deceased, has already died.

No matter how long a person cohabits with their partner, unless they marry or enter into a civil partnership, the surviving partner will inherit only assets owned jointly with the deceased (if any) and nothing owned in the deceased’s sole name. For cohabiting couples, assets in the sole name of the deceased will pass to his or her children if there are any, or potentially to their parents, or brothers and sisters.

Unless a residence was owned as joint tenants between the deceased and the surviving spouse, civil partner or cohabiting partner, it will not automatically be inherited by the survivor. Undesirable outcomes can include not being able to sell the property until all the children are over 18, or even co-owning a property with potentially estranged members of the deceased’s wider family, with the survivor having to pay rent simply to stay in what was their home with the deceased.