What happens if I die without a valid Will?
The Alternative – Intestacy
Anyone who dies without having a valid will dies ‘intestate’. This means the law decides who is entitled to inherit your assets. This might not necessarily be who would have chosen to benefit from your estate if you had made a will.
Who inherits under intestacy laws?
Without a valid will, the law dictates who your beneficiaries will be. This means your estate could be split up and distributed between your closest relatives – regardless of whether or not you would approve.
The Administration of Estates Act 1925 sets out the specific order of those relatives who are legally entitled to inherit the estate, depending on whether or not the deceased was married (or had a civil partner). The legal beneficiaries will be the closest living relatives of the deceased person according to their class, based on the family relationship.
Married but no children?
If the deceased was married (or had a civil partner) and there are no children/grandchildren or their children; no parents or siblings (or any of their children) the spouse or civil partner inherits the whole estate.
Married with children?
Where the deceased leaves a spouse (or civil partner) and children:
a. The surviving spouse inherits all personal belongings; the first £250,000 (if the estate exceeds this amount) and a life interest in half of the remainder ie the income from it.
b. The remaining half goes to the children equally on ‘statutory trusts’ on the age of 18 years (or their own children if any die before the deceased or reaching 18 years).
Married but no children – but parent/siblings
Where the deceased leaves a spouse (or civil partner) but no children – but there is a parent or siblings:
a. The spouse inherits all personal belongings; the first £450,000 (if the estate exceeds this amount) and half of the residue;
b. The remaining half goes to any parent/s or, if none – to the siblings on statutory trusts on the age of 18 years (or their children if any die before the deceased or reaching 18 years).
No surviving spouse
Where the deceased leaves no surviving spouse (or civil partner), one of these eight classes take the estate in this order:
• Children, grandchildren, great-grandchildren (‘issue’);
• Siblings of the whole blood
• Siblings of the half blood
• Nieces and nephews
• Uncles and Aunts of the whole blood – a cousin can inherit instead if the uncle or aunt who would have inherited died before the intestate person (the statutory trusts)
• Uncles and Aunts of the half blood (on the statutory trusts)
• The Crown as ‘bona vacantia’
If there are no relatives in the top class, all relatives in the next class in which there are surviving relatives take the estate in equal shares – and no one in a lower class is entitled.
Important points to note:
Spouses and Partners
If the estate is substantial, the spouse will not necessarily inherit the whole of it.
‘Common law’ husbands and wives have no such rights under intestacy rules. Contrary to popular belief, there is no such recognised legal status as ‘common law’ marriage in England and Wales.
If you are divorced (or your civil partnership has been legally dissolved) you have no rights to inherit the estate of your ex-wife or ex-husband under the intestacy rules.
However, spouses who are informally separated, or are going through the divorce process but the divorce nisi has not yet come through, can still inherit under the rules of intestacy.
A decree of judicial separation will prevent the spouse from inheriting.
The way children are treated for the purposes of intestacy laws is not always straight forward. For instance, step-children, informally ‘adopted’ children and children born as a result of IVF and surrogacy are frequently treated differently because the law on intestacy makes no provision for these classes of individuals.
Legally adopted children are treated for the purposes of intestacy law as the child of the parents who adopted – not the natural parents. Children who have been informally adopted or fostered do not have inheritance rights.
Illegitimacy is irrelevant for the purposes of an individual’s entitlement to inherit under the intestacy law.
What happens if there are no surviving relatives?
The estate goes to the Crown ‘bona vacantia’ (unless the estate is in the Duchy of Lancaster or the Duchy of Cornwall). The Treasury Solicitor is appointed by Royal Warrant to take legal and administrative responsibility for the estate.
The Government’s Bona Vacantia Division will first advertise for, and make other appropriate enquiries into, possible heirs to the estate. If none are found, the net proceeds of sale of the assets will pass to the Treasury.
The Crown can make grants from the estate but is not obliged to agree to them.