The intestacy rules decide who inherits when someone dies without a valid will. In England and Wales, a surviving spouse or civil partner with no children or other descendants inherits everything. Where there are children, the spouse takes the personal possessions, the first £322,000 (for deaths on or after 26 July 2023) and half of the rest, and the children share the other half. Unmarried partners inherit nothing automatically. With no will there is no executor either: the closest relative, in a fixed order starting with the spouse, applies to act as administrator.
Who inherits: the order under section 46
The rules are in section 46 of the Administration of Estates Act 1925. They apply to whatever passes under the estate, so jointly owned property held as joint tenants, which passes automatically to the surviving owner, falls outside them.
| Surviving family | Who inherits |
|---|---|
| Spouse or civil partner, no children or other descendants | Spouse or civil partner takes everything |
| Spouse or civil partner and children | Spouse: personal chattels, £322,000 plus interest, and half the remainder. Children: the other half, shared equally |
| Children, no spouse or civil partner | Children share everything equally |
| No spouse or descendants | Parents, then brothers and sisters of the whole blood, then of the half blood, then grandparents, then uncles and aunts of the whole blood, then of the half blood |
| None of these | The Crown, as bona vacantia |
Each class takes only if no one in an earlier class survives. Within a class, relatives share equally, and where a child of the deceased has already died, that child's own children step into their parent's share. Children and other descendants receive their share outright once they reach 18, or earlier if they marry or form a civil partnership; until then it is held on trust for them.
Two technical points catch families out. The spouse must survive the deceased by 28 days to inherit under these rules. And simple interest runs on the £322,000 from the date of death until it is paid, at the Bank of England rate in force at the end of the day of death, so a long administration increases the spouse's entitlement.
A worked illustration
An illustration with invented figures: a man dies without a will, leaving a wife and two adult children. His estate, after debts and excluding personal chattels, is worth £600,000, all in his sole name.
- Wife. Personal chattels, plus £322,000, plus half of the remaining £278,000 (£139,000): £461,000 in total, ignoring interest;
- Children. The other £139,000, so £69,500 each.
If the same man had died with no children, his wife would have taken all £600,000. If the house had been owned jointly as joint tenants, it would have passed to her outside the estate and the figures above would be much smaller.
Who is the executor if there is no will?
Strictly, nobody. An executor is appointed by a will. Without one, someone must apply to the Probate Registry for letters of administration and act as administrator. Rule 22 of the Non-Contentious Probate Rules 1987 sets the order of priority, which mirrors the inheritance order: first the surviving spouse or civil partner, then the children, then parents, then brothers and sisters, and so on to uncles and aunts. Only after those classes are exhausted can a creditor or other person apply.
No more than four people can take out the grant. The administrator then has the same job as an executor: valuing the estate, dealing with inheritance tax, paying debts and distributing according to the intestacy rules. Our guide to the role of an executor covers those duties, and the probate application fee is £526 where the estate is worth more than £5,000.
Unmarried partners and other claims
A cohabiting partner, however long the relationship, has no entitlement under the intestacy rules. Stepchildren who were never adopted are not among the relatives listed in section 46 either. The main remedy is a claim under the Inheritance (Provision for Family and Dependants) Act 1975 for reasonable financial provision. A cohabitant can claim if they lived with the deceased in the same household as if married or civil partners for the whole of the two years before the death; other dependants may also be eligible. The claim must be made within six months of the grant being taken out, unless the court gives permission to apply later.
Changing the outcome after death
The result of the intestacy rules is not always fixed. Within two years of the death, the people who inherit can redirect their entitlement using a deed of variation, which can be effective for inheritance tax and capital gains tax as if the deceased had made the gift. Families often use this to provide for a partner the rules leave out, or to pass assets down a generation.
Inheritance tax applies to an intestate estate in the same way as to any other. There is normally no inheritance tax on what passes to a spouse or civil partner; the rest is set against the £325,000 nil-rate band and any other allowances. The rules above apply to England and Wales only. Scotland and Northern Ireland have their own rules.
Acumon supports administrators and families with the financial side of an intestate estate, from valuing the estate and calculating each person's share to the inheritance tax account and estate accounts. See our estate and probate services, or our probate accountants if you are already acting as administrator.