When someone dies in England or Wales without a valid Will they die “intestate”. The estate is then distributed not according to the person's wishes but according to a fixed legal order — the intestacy rules. These rules often produce an outcome the deceased would not have chosen, and they completely exclude unmarried partners and stepchildren. The person who administers the estate also changes: instead of an executor named in a Will, the closest relative applies for Letters of Administration.
The intestacy order — who inherits when there is no Will
The rules in England and Wales (Scotland and Northern Ireland have different rules) work down a strict ladder. The first category that contains a living relative takes everything; you never skip down the ladder if there is someone in a higher class.
- Spouse or civil partner only (no children/descendants): the surviving spouse or civil partner inherits the entire estate.
- Spouse plus children/descendants: the spouse takes personal possessions, the statutory legacy (currently £322,000 in England and Wales) and half of the residue. The children share the other half equally. If a child has predeceased leaving children of their own, those grandchildren take their parent's share.
- Children/descendants only (no spouse): the children share the estate equally; predeceased children's shares pass to their own children.
- Parents (no spouse, no descendants).
- Siblings of the whole blood (sharing both parents), then their children (the deceased's nieces and nephews of the whole blood) by representation.
- Half-siblings (sharing one parent), then their children by representation.
- Grandparents.
- Aunts and uncles of the whole blood, then their children (cousins).
- Aunts and uncles of the half blood, then their children.
- Bona vacantia — the Crown. If no relative within these classes is found, the estate passes to the Crown (or to the Duchies of Cornwall or Lancaster in their respective areas).
The statutory legacy — what the spouse actually gets
When a married person dies intestate leaving both a spouse and descendants, the law splits the estate in a specific way:
| To the surviving spouse / civil partner | To the descendants |
|---|---|
| All personal chattels (possessions: car, jewellery, furniture, etc.) | Nothing of the chattels |
| A statutory legacy of £322,000 (England and Wales, current figure) | Nothing from the first £322,000 |
| Half of the rest of the estate | The other half, shared equally between children (or, if any have died, between their own children by representation) |
For an estate worth £600,000 with a spouse and two adult children, that means the spouse gets the chattels plus £322,000, plus half of the remaining £278,000 (so £139,000). The two children share the other £139,000 — £69,500 each. Not necessarily what the deceased would have chosen.
The statutory legacy figure is reviewed periodically and was last increased on 26 July 2023. For an up-to-date figure always check the current Statutory Instrument or speak to a solicitor — we will confirm the live figure when we open the file.
Who administers the estate? Letters of Administration
When there is no Will, there is no executor, and the application is for Letters of Administration rather than a Grant of Probate. The order of who is entitled to apply broadly mirrors the order of inheritance:
- Surviving spouse or civil partner
- Children (with grandchildren stepping into the shoes of a deceased parent)
- Parents
- Siblings of the whole blood, then their descendants
- Half-siblings, then their descendants
- Grandparents, then aunts/uncles, then their descendants
Only one person needs to apply, though up to four can act jointly and at least two are usually required where there is a minor or life-interest beneficiary. Once the grant issues, that person (the “administrator”) has the same legal authority as an executor would have under a Will: collecting in assets, paying debts and taxes, and distributing the estate. The duties are the same; the title is just different.
Why intestacy so often produces the wrong outcome
1. Unmarried partners are excluded entirely
The most common — and most painful — intestacy outcome is the long-term partner who finds themselves with no right to anything. The home may be in the deceased's sole name; the bank accounts likewise. The intestacy rules pass everything to the deceased's children, parents or siblings instead. The partner must then either negotiate, or sue under the 1975 Act.
2. Stepchildren get nothing
The intestacy rules only treat “children” as biological or formally adopted children. Stepchildren raised as your own — even since infancy — have no rights under intestacy unless legally adopted. A blended family without a Will frequently produces outcomes the deceased would have hated.
3. Estates are split awkwardly between spouse and adult children
When the spouse only gets the statutory legacy plus half of the rest, adult children can end up with significant lump sums while the surviving parent is left with less than expected — and sometimes with the family home put under pressure to be sold to release the children's share. Most couples want everything to pass to the survivor, then on the second death to the children. A Will achieves that; intestacy does not.
4. The inheritance tax position is often worse
Intestacy doesn't make use of the residence nil-rate band as efficiently as a well-drafted Will can. Where the home would have passed straight to children under a Will, the intestacy split may dilute or delay that. See our guide to inheritance tax thresholds in 2026.
5. Disputes are more likely
Without the deceased's wishes recorded in a Will, family members fall back on assumptions about what would have been “fair”. That is fertile ground for resentment, disagreement and, at worst, full-blown contentious probate disputes.
What can be done to fix an intestacy outcome?
Sometimes the rigid intestacy outcome can be softened. The main mechanisms are:
- Deed of variation — if the beneficiaries unanimously agree, the entitlements can be redirected by a deed of variation within two years of the death. This is the standard way of rerouting an intestacy outcome to the partner, stepchildren or charities the deceased would have wanted to benefit, and the variation can be made effective for inheritance tax purposes too.
- Inheritance Act 1975 claim — a cohabiting partner of at least two years, a former spouse, a child, a stepchild treated as a child of the family or any other dependant can apply to court for “reasonable financial provision”. The claim must be brought within six months of the grant.
- Survivorship — joint tenancies (typically a jointly owned home and joint bank accounts) pass automatically to the surviving owner outside the intestacy rules. This is often the single biggest source of relief for surviving partners.
None of these are a substitute for actually making a Will. They are workarounds with risks, costs and time limits — not solutions.
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