In a recent article on Will writing, we highlighted ‘not understanding what happens when someone dies without a Will’ in our 6 top reasons why people fail to make a Will.

There is a common belief that a surviving spouse in marriage or partner in a civil relationship automatically inherits everything in the deceased person’s estate and that even in the absence of a Will, the process happens seamlessly.

However, this is not the case in certain circumstances, and the 2014 intestacy rules dictate how money, property and possessions are distributed in the absence of a legally binding Will.

Moreover, the intestacy process is far from seamless. In practice, a surviving spouse, partner or family member is required to prove they have a right to inherit and apply to the Probate Court for ‘letters of administration’. Any inheritance is processed according to intestacy laws, and not often in a way the deceased intended.

There are plenty of stories of surviving family members becoming overwhelmed with the administrative burden of dealing with intestacy. The stress can be intolerable, and the family dynamic can be severely affected.

Also, if you have children, the way intestacy rules work may not suit your circumstances.

Dying ‘intestate’ has far-reaching repercussions, and understanding the consequences of intestacy is critical if you want to help your surviving family at an emotionally difficult time.

Intestacy rules explained

(Note that only direct family members can inherit under the 2014 intestacy rules.)

If you are married or in a civil partnership with children

All personal items are gifted to your spouse. Also, your spouse inherits money and property up to the value of £250,000.

The remainder is split in half: 50% goes to your children when they turn 18, the other 50% is added to your spouse’s initial inheritance.

If you are married or in a civil partnership without children

Your spouse inherits your entire estate: all your money, property and possessions.

If you have children, but not by marriage or civil partnership

The children directly inherit everything.

If you do not have a partner or children

The estate goes to your parents unless both parents are deceased, in which case, the inheritance passes to surviving family members in the following order of priority:

  • brothers and sisters,
  • nieces and nephews,
  • grandparents,
  • uncles and aunts, and
  • cousins.

If you do not have any surviving relatives, the estate passes to the Crown.

Who cannot inherit according to intestacy rules?

People cannot inherit according to intestacy rules if

  • they are an unmarried partner,
  • they are a by marriage such as a stepchild,
  • they are in a same-sex relationship but not in a civil partnership, or
  • they are a close friend, companion or carer.

Probate and intestacy

Even if you are married or in a civil partnership, your surviving spouse or partner cannot just take control of your estate when you die: they have to apply to the Probate Court for ‘letters of administration’.

It is important to note that probate is typically completed in 3-6 months when a Will is in place, but if you die intestate, the process can take 12-18 months and involve significant legal fees.

The benefits of making a Will

When you die with a Will in place, you name an executor or executors to carry out the instructions.

Executors apply for a ‘grant of probate’ as opposed to ‘letters of administration’, and this speeds up the probate process.

Making a Will also helps deal with many modern situations that intestacy rules do not provide for: including multiple marriages, divorces, children and stepchildren.

A Will reflects your direct wishes in a legally compliant document. You state whom you want to inherit, what you want them to inherit, and what special conditions you wish to apply.

Special conditions include things like making sure your wealth passes down your bloodline if you have children and your surviving spouse subsequently remarries.

Like to learn more?

You can find detailed information and a useful glossary of essential terms in our Will writing guide. Learn more about the Will writing process and the risks associated with not having a Will in place.

Download your FREE guide to making a Will.

About the author
Jane Amos is an experienced member of The Society of Will Writers. Over the past four years, she has helped many families enjoy the confidence their affairs are in order and feel safe in the knowledge their wishes will be carried out explicitly in the event of an untimely death.

Her expertise extends to personalised Will writing, property trusts, lasting powers of attorney and probate.