The rules of intestacy and what happens if you die without a will

What happens if I die intestate?

When someone dies without a valid will in the UK, they are said to have died ‘intestate’ (a term derived from Latin meaning ‘without a testament’).

In essence, it means that the deceased left no formal or binding instructions to determine how their estate – made up of any money, assets and property they own – should be handled after they pass away. As a result, the estate is handled according to the rules of intestacy, which is set out by UK law and covers quite strict (and often outdated) judgements on who can inherit what.

Even if a will has been created, if it is found to be invalid, the rules of intestacy will still apply, and anything set out in the will is considered null and void.

A will could be invalid due to:

• It has not been signed or witnessed properly
• It has been destroyed or altered outside of proper process
• The person creating the will (the ‘testator’) was found to lack mental capacity at the time of the will being drafted
• The testator was put under undue pressure while drafting the will
• The will is not clear, setting out confusing or incoherent terms
• There was a change in legal rights of the testator or a relative (for instance, marriage, divorce or bankruptcy) that was not reflected in the will

UK inheritance rules and the rules of intestacy

Inheritance rules in the UK clearly set out what should happen to an estate when someone dies intestate. Under the rules of intestacy, an administrator (the person responsible for distributing the estate) is identified and appointed, and they are legally obligated to follow the rules of intestacy throughout the process.

This will vary depending upon the circumstances of the deceased at the time of their passing. For instance:

• If the deceased was married or in a civil partnership without any children, their spouse or civil partner will inherit everything.
• If they were married or in a civil partnership and had children, the first £322,000 is inherited by the partner, and the rest is divided; 50% goes to the partner and 50% to the children. If the estate is worth less than £322,000, the children won’t inherit anything.
• If the deceased was not married or in a civil partnership, but had children, the whole estate will go to them.
• If the deceased did not have a spouse, civil partner, or children, the estate will go to their parents, siblings or other relative – depending upon who the closest living relative is at the time of their death.

If someone dies intestate while co-habiting with a partner, the partner is not entitled to inherit anything from the estate under the rules of intestacy. The same applies to any stepchildren who have not been legally adopted.

In the case of jointly owned assets, the surviving joint owner will take full ownership. For example, if someone dies without will and they jointly owned property with a partner (whether married, in a civil partnership, or cohabiting), that partner would take full ownership of the property, and it would not be included in valuation of the estate.

How to administer an estate under the rules of intestacy

The administrator of the estate will be the most ‘entitled’ person, usually the closest living relative of the deceased. This will often be the deceased’s spouse or civil partner (even if they were separated), or any children over the age of 18 (including any legally adopted children but not stepchildren).

The administrator will have to apply for the legal authority to administer the estate, known as a Letter of Administration. If they do not wish to be appointed as the administrator, they can appoint someone else to do it on their behalf or permanently relinquish their right to administer the estate.

Once the administer has been granted the relevant authority over the estate, they will have to follow the rules of intestacy to identify the beneficiaries (those who will inherit from the estate) and how much each should inherit.

It is vitally important that this process is done correctly, following the strict rules set out by the UK’s inheritance laws. Any mistakes that are made – even accidentally – could result in the administrator being found financially liable for any losses sustained by beneficiaries as a result.

What happens if I have a will, but it doesn’t include all my assets?

It is strongly recommended that you ensure your will is kept up to date, and any changes to your estate or your legal status (such as marriage, divorce or bankruptcy) is reflected in the terms you set out. An out-of-date will runs a much higher risk of being found invalid, which means none of the wishes you set out will apply when it comes time to distribute the estate.

In some cases, however, a will that does not include all a person’s assets may trigger a process known as ‘partial intestacy’. This means that any assets included within the will are handled according to the deceased’s wishes, while any that are not mentioned are distributed in accordance with the rules of intestacy.

Partial intestacy could also apply if all the beneficiaries named within the will have already passed away, and no substitutes have been named.

How can Slater and Gordon support me?

It’s not always easy, or pleasant, to think about what will happen after we are gone, or to understand how to take the first steps of estate administration after a loved one has passed away. In these emotional and challenging times, having the support of understanding and compassionate legal professionals can ensure the process runs smoothly and with as little stress as possible.

At Slater and Gordon, our expert wills and probate solicitors have many years of experience in supporting families at every stage of the will process; from expert legal advice on how to prepare a will to support in executing a loved one’s wishes after they have passed.

Whether you have been appointed as the administrator of an estate without a will, or wish to ensure that your estate is managed according to your wishes and avoids the rules of intestacy, speak to our friendly team on 0330 041 5869 or contact us online to request a call back.