If someone dies without a valid will in England and Wales, their estate is not distributed according to what they might have wanted — it is distributed strictly according to the intestacy rules, a fixed legal order of priority that applies regardless of the deceased’s actual wishes, family closeness or informal promises made during their lifetime.
The legal basis for intestacy
The rules of intestacy are set out in law and determine, in a strict order, which relatives are entitled to inherit when there is no valid will. They apply automatically — there is no discretion for the person administering the estate to depart from the order set out, even where doing so would arguably better reflect what the deceased intended.
If there is a surviving spouse or civil partner
A surviving spouse or civil partner is given priority under the intestacy rules, but exactly how much they receive depends on whether the deceased also left children.
- If there are no surviving children or other descendants, the spouse or civil partner inherits the whole estate.
- If there are surviving children, the spouse or civil partner inherits all personal possessions, a fixed statutory legacy of the first £322,000 of the estate, and half of whatever remains above that figure. The other half of the remainder is divided equally between the children.
Crucially, this only applies to spouses and civil partners in the legal sense. A spouse who has divorced, or a civil partner whose partnership has been legally dissolved, has no claim under these rules — but separated couples who are still legally married or in a civil partnership at the date of death retain their entitlement, which can produce results that surprise people who assumed separation alone was enough to change things.
If there is no surviving spouse or civil partner
Where there is no surviving spouse or civil partner, the whole estate passes to surviving children in equal shares, regardless of the size of the estate. This includes adopted children on the same basis as biological children. Step-children who were never legally adopted by the deceased have no automatic entitlement under intestacy, however close the actual relationship was.
If there are no surviving children or other descendants either, the estate passes down a fixed further order: parents, then siblings (or their children if a sibling has already died), then half-siblings, then grandparents, then aunts and uncles, and so on through a defined hierarchy of blood relatives.
Unmarried and cohabiting partners have no automatic rights
One of the most consequential gaps in the intestacy rules is that unmarried partners — however long the relationship, and regardless of whether they lived together, had joint finances or raised children together — have no automatic right to inherit anything under intestacy. Only marriage or civil partnership status brings an automatic entitlement. A surviving cohabiting partner in this position may be able to bring a separate claim for reasonable financial provision from the estate under different legislation, but this requires a court application — it is not an automatic entitlement in the way a spouse’s share is, and it involves cost, time and no guaranteed outcome.
Bona vacantia: when there are no eligible relatives
Where a person dies intestate and, after working through the full statutory order, no eligible relative can be found at all, the estate passes to the Crown. This is known as bona vacantia (“ownerless goods”), and such estates are handled by the Treasury Solicitor’s Bona Vacantia Division. In practice this outcome is relatively rare, since the statutory order of relatives who can inherit is drawn quite widely, but it does happen, particularly for people who die with no close family and had lost contact with more distant relatives.
What this means in practice
The intestacy rules produce a fixed, impersonal outcome that takes no account of individual circumstances, promises or fairness as the deceased might have judged it. A long-term unmarried partner can receive nothing while a legally separated but not divorced spouse inherits a substantial share. A step-child raised from infancy can be excluded entirely while a biological child from an earlier, estranged relationship inherits in full. Making a valid will is the only way to guarantee an estate is distributed as the person who made it actually intended, rather than according to this default statutory order.
FAQs
Does a will have to be professionally drafted to be valid?
No — a will can be valid without a solicitor’s involvement, provided it meets the formal legal requirements for execution (in writing, signed, and witnessed correctly by two independent witnesses). However, getting the formalities wrong is a common reason wills are later found invalid, which is why many people still choose professional help, particularly for anything beyond a very simple estate.
Can the intestacy rules ever be challenged?
The rules themselves cannot be changed for an individual case, but a person who feels they have not been reasonably provided for — a cohabiting partner or a dependant, for example — may be able to apply to court for reasonable financial provision from the estate under separate legislation, rather than under the intestacy rules directly.
What happens to jointly owned property under intestacy?
This depends on how the property was jointly owned. Property held as “joint tenants” passes automatically to the surviving owner outside of the intestacy rules entirely. Property held as “tenants in common” is treated as part of the deceased’s estate and is distributed according to the intestacy rules like any other asset.