A recent conversation with a close relative reminded me how many people do not know what happens if you die without making a will.
Even worse, many people think they know what happens, but are wrong. When they die without a will, what happens to their estate will differ, often very significantly, from what they wanted to happen.
While I have tried to set out the rules as well as I can, this is not professional advice.
As every page on my website states in the footer, I accept no legal responsibility to anyone who acts, or refrains from acting, after reading, watching, or listening to anything on my website.
A final point is that the law in Scotland and in Northern Ireland may differ, since they have slightly different legal systems. That is why I specifically mention England & Wales below in the phrase "every will ever made in England & Wales."
The law governing making wills is complicated, and interpreted very strictly.
Accordingly, you should always get a lawyer to prepare your will for you, (or have a lawyer review any will you draft yourself) and also arrange the signing and witnessing which is easy to get wrong.
It is very easy to accidentally make your will invalid. The consequences can be catastrophic.
I would never use a purchased will form to make a "DIY will."
If you die after making a (valid) will, your estate will be distributed in accordance with the terms of your will. The only exception is covered in the Appendix below.
If you die without making a will, or if the will you made is invalid (not recognised by the law as a properly made will) then you have died “intestate.”
If so, the law specifies how your estate is dealt with. This part of the law is normally referred to as “the intestacy rules.”
When you are dead, you can no longer own things. The state has to decide how your property is to be dealt with, since you have made no decision yourself because you have not made a will.
The rules set out below are a form of “rough justice”. Parliament has legislated them, and they are based upon looking at how most people choose to leave their estates if they do make a will. (Remember, after death, wills are public documents so the Government has, in theory, had the benefit of studying every will ever made in England & Wales.)
I call the rules “rough justice” because they do not attempt to take account of the specific circumstances for you and your family.
The government website has an interactive guide on its website page “Intestacy - who inherits if someone dies without a will?” You can work through it, entering in your family's circumstances.
However my professional career taught me to always look at the original source. In this case, the provisions are found in the “Administration of Estates Act 1925” Part IV.
I have reproduced the most important provision, section 46, below. When reading it, remember that "issue" means children and remoter lineal descendants (grandchildren, great-grandchildren, etc).
As statute law can be hard to take in, I have drawn simple examples and inserted the images between the paragraphs of section 46. The images are numbered to match the statute.
(1) The residuary estate of an intestate shall be distributed in the manner or be held on the trusts mentioned in this section, namely:—
(i) If the intestate leaves a spouse or civil partner, then in accordance with the following table:
(1) If the intestate leaves no issue:
the residuary estate shall be held in trust for the surviving spouse or civil partner absolutely.
(2) If the intestate leaves issue:
The amount of the fixed net sum referred to in paragraph B of case (2) of this Table is to be determined in accordance with Schedule 1A.
(ii) If the intestate leaves issue but no spouse or civil partner, the residuary estate of the intestate shall be held on the statutory trusts for the issue of the intestate;
(iii) If the intestate leaves no spouse or civil partner and no issue but both parents, then, the residuary estate of the intestate shall be held in trust for the father and mother in equal shares absolutely;
(iv) If the intestate leaves no spouse or civil partner and no issue but one parent, then, the residuary estate of the intestate shall be held in trust for the surviving father or mother absolutely;
(v) If the intestate leaves no spouse or civil partner and no issue and no parent, then the residuary estate of the intestate shall be held in trust for the following persons living at the death of the intestate, and in the following order and manner, namely:—
First, on the statutory trusts for the brothers and sisters of the whole blood of the intestate; but if no person takes an absolutely vested interest under such trusts, then
Secondly, on the statutory trusts for the brothers and sisters of the half blood of the intestate; but if no person takes an absolutely vested interest under such trusts; then
Thirdly, for the grandparents of the intestate and, if more than one survive the intestate, in equal shares; but if there is no member of this class; then
Fourthly, on the statutory trusts for the uncles and aunts of the intestate (being brothers or sisters of the whole blood of a parent of the intestate); but if no person takes an absolutely vested interest under such trusts; then
Fifthly, on the statutory trusts for the uncles and aunts of the intestate (being brothers or sisters of the half blood of a parent of the intestate);
(vi) In default of any person taking an absolute interest under the foregoing provisions, the residuary estate of the intestate shall belong to the Crown or to the Duchy of Lancaster or to the Duke of Cornwall for the time being, as the case may be, as bona vacantia, and in lieu of any right to escheat. The Crown or the said Duchy or the said Duke may (without prejudice to the powers reserved by section nine of the M1Civil List Act, 1910, or any other powers), out of the whole or any part of the property devolving on them respectively, provide, in accordance with the existing practice, for dependants, whether kindred or not, of the intestate, and other persons for whom the intestate might reasonably have been expected to make provision.
(1A) The interest rate referred to in paragraph (B) of case (2) of the Table in subsection (1)(i) is the Bank of England rate that had effect at the end of the day on which the intestate died.
(2) A husband and wife shall for all purposes of distribution or division under the foregoing provisions of this section be treated as two persons.
(2A) Where the intestate’s spouse or civil partner survived the intestate but died before the end of the period of 28 days beginning with the day on which the intestate died, this section shall have effect as respects the intestate as if the spouse or civil partner had not survived the intestate.
(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [deleted by Parliament in 2014]
(4) The interest payable on the fixed net sum payable to a surviving spouse or civil partner shall be primarily payable out of income.
(5) In subsection (1A) “Bank of England rate” means—
(6) The Lord Chancellor may by order made by statutory instrument amend the definition of “Bank of England rate” in subsection (5) (but this subsection does not affect the generality of subsection (7)(b)).
(7) The Lord Chancellor may by order made by statutory instrument—
(8) A statutory instrument containing an order under subsection (6) is subject to annulment pursuant to a resolution of either House of Parliament.
(9) A statutory instrument containing an order under subsection (7) may not be made unless a draft of the instrument has been laid before and approved by a resolution of each House of Parliament.
As the table states, Administration of Estates Act 1925 Schedule 1A specifies how the fixed sum is determined.
It is set out in UK Statutory Instrument 2020 No. 33 “The Administration of Estates Act 1925 (Fixed Net Sum) Order 2020” regulation 2 reproduced below:
As you can read above, the Administration of Estates Act 1925 s.46 asks if the deceased had a spouse or civil partner.
A spouse is someone you are legally married to. A civil partner is someone with whom you have entered into a legally registered civil partnership under the law.
English law does not recognise cohabitation as giving rise to rights equivalent to marriage. There is no such thing as a “common law wife” or “common law husband.” Similarly, as I have written elsewhere on this website, for example "Muslim religious marriages and divorces – the problems and ways forward" English law gives no recognition to a "nikah" (Muslim religious marriage) performed in the UK.
The legal position is more complicated for a nikah performed overseas which will often be recognised for English law purposes as a marriage. However, issues regarding international personal law are too complex for this page.
Fundamentally, they take no account of your personal circumstances. These are general rules established in law which apply if you die without a will, irrespective of what you might have wanted to happen.
Consider the following hypothetical examples.
John has lived with Jane for 40 years. They have no children. John’s parents are dead. John has a brother. John owns the house in which he and Jane live and has £1 million of investments. John dies.
Section 46(1) (v) applies, with the “First” item in the list since John has a brother “of the whole blood.” (That phrase means that both brothers have the same mother and father.)
Accordingly, John’s brother inherits both the house and the £1 million of investments. Jane inherits nothing. (See the Appendix below.)
John has lived with Jane for 20 years. They have two children aged 19. John owns the house in which he and Jane live and has £10 million of investments. John dies.
Section 46(1) (ii) applies.
The children inherit the house and the £10 million of investments. Jane inherits nothing. (See the Appendix below.)
While this page is not about inheritance tax planning, there is also an enormous inheritance tax bill since the entire estate (less the £325,000 nil rate band) is subject to inheritance tax at 40%, over £4,000,000 of tax.
If John had been married to Jane and had made a will leaving his estate to her, the inheritance tax payable on John’s death would have been zero.
As well as Jane being left penniless and homeless, John may not have wanted his 19-year-old children to inherit so much money at such an early age. For example, by making a will he could have left money to them in trust instead even if he did not want Jane to receive anything.
John is married to Jane. They have two children aged 19. John owns the house in which he and Jane live, worth £500,000, and has £1 million of investments. John dies.
The table in section 46(1)(i) applies. Jane inherits all of John’s personal effects. The rest of the estate which is £1.5 million is divided as follows:
£270,000 + half of the excess
John’s children (shared half each)
Half of the excess
Jane’s situation is transformed because she was married to John.
However, there is still a significant inheritance tax bill on the children’s inheritance. Furthermore, it is not a good idea for many 19-year-olds to inherit so much money that they can go out and spend immediately.
The only way you can control how your estate is distributed when you die is by making a will.
As some readers may be thinking about these, they deserve a brief mention.
People who inherit things can of course choose to give them away, either to third parties or to other inheritors. However, this can only be done voluntarily by adults. Nobody can force an adult to give away something that they have inherited.
Children aged under 18 are legally unable to give consent to giving away something they have inherited. The court can give consent on their behalf but except in very peculiar circumstances will be unlikely to do so, since it is hard to see how the child is better off by giving something away.
Where such a variation document is executed and presented to HM Revenue & Customs within two years of death with the appropriate tax election being signed, the inheritance tax on the death is computed as if the variation had taken place on death. See Inheritance Tax Act 1984 section 142.
For example, if John’s two adult children in example (3) gave away their combined £615,000 inheritance to their mother Jane, this would avoid all the inheritance tax on the estate. (In fact, they only need to give away the excess over the nil rate band of £325,000 plus any uplift of the nil rate band for any part of the inheritance relating to the house.)
As a chartered accountant and chartered tax adviser, I have always had a will since I got married. So has my wife. You cannot give advice to other people about planning their estates while ignoring your own.
There is a well-known saying that “the cobbler’s children are the least well shod” but there is no reason for cobblers (or tax advisers) to behave that way!
As illustrated by the examples, the intestacy rules can lead to great hardship. In Example 1, after 40 years of cohabitation, Jane was left penniless.
Similarly, people making wills can sometimes behave cruelly, cutting a close relative out of their will, or thoughtlessly forgetting about someone.
Accordingly, Parliament has legislated to mitigate this by passing the Inheritance (Provision for Family and Dependants) Act 1975.
The effect is to allow either the operation of your will or the operation of the intestacy rules to be modified in certain cases.
The key provision, section 1 is copied below.
(1) Where after the commencement of this Act a person dies domiciled in England and Wales and is survived by any of the following persons:—
(a) the spouse or civil partner of the deceased;
(b) a former spouse or former civil partner of the deceased, but not one who has formed a subsequent marriage or civil partnership;
(ba) any person (not being a person included in paragraph (a) or (b) above) to whom subsection (1A) below applies;
(c) a child of the deceased;
(d) any person (not being a child of the deceased) who in relation to any marriage or civil partnership to which the deceased was at any time a party, or otherwise in relation to any family in which the deceased at any time stood in the role of a parent, was treated by the deceased as a child of the family;
(e) any person (not being a person included in the foregoing paragraphs of this subsection) who immediately before the death of the deceased was being maintained, either wholly or partly, by the deceased;
that person may apply to the court for an order under section 2 of this Act on the ground that the disposition of the deceased’s estate effected by his will or the law relating to intestacy, or the combination of his will and that law, is not such as to make reasonable financial provision for the applicant.
(1A) This subsection applies to a person if the deceased died on or after 1st January 1996 and, during the whole of the period of two years ending immediately before the date when the deceased died, the person was living—
(a) in the same household as the deceased, and
(b) as if that person and the deceased were a married couple or civil partners].]
(1B) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [Deleted by Parliament in 2019]
(2) In this Act “reasonable financial provision”—
(a) in the case of an application made by virtue of subsection (1)(a) above by the husband or wife of the deceased (except where the marriage with the deceased was the subject of a decree of judicial separation and at the date of death the decree was in force and the separation was continuing), means such financial provision as it would be reasonable in all the circumstances of the case for a husband or wife to receive, whether or not that provision is required for his or her maintenance;
(aa) in the case of an application made by virtue of subsection (1)(a) above by the civil partner of the deceased (except where, at the date of death, a separation order under Chapter 2 of Part 2 of the Civil Partnership Act 2004 was in force in relation to the civil partnership and the separation was continuing), means such financial provision as it would be reasonable in all the circumstances of the case for a civil partner to receive, whether or not that provision is required for his or her maintenance;
(b) in the case of any other application made by virtue of subsection (1) above, means such financial provision as it would be reasonable in all the circumstances of the case for the applicant to receive for his maintenance.
(2A) The reference in subsection (1)(d) above to a family in which the deceased stood in the role of a parent includes a family of which the deceased was the only member (apart from the applicant).
(3) For the purposes of subsection (1)(e) above, a person is to be treated as being maintained by the deceased (either wholly or partly, as the case may be) only if the deceased was making a substantial contribution in money or money's worth towards the reasonable needs of that person, other than a contribution made for full valuable consideration pursuant to an arrangement of a commercial nature.
In Examples 1 and 2, where Jane had cohabited with John, this law would allow her to apply to the court for reasonable financial provision.
However, what the court regards as reasonable financial provision for Jane may be much less than John would have wanted Jane to receive. That is why John should have made a will.