What happens if you die without a will in England & Wales?

It is one of the most common questions we are asked, and the answer surprises a lot of people. If you die without a valid will you are said to have died intestate, and the law, not you, decides who inherits, using the rules of intestacy.

Those rules are fixed. They take no account of what you would have wanted, what you told people, or what would be fair. They simply apply.

What "intestate" actually means

You die intestate if you never made a will, or if the will you made is not valid. That second point catches people out. A will can fail because it was not signed or witnessed correctly, because it was destroyed, or because it cannot be found after your death. We look at the signing problem in our guide on cheap and DIY wills, and at the finding problem in our guide on storing a will safely.

A partial intestacy is also possible, where a will exists but does not deal with everything you own. The rules then apply to whatever is left over.

Who inherits, and in what order

The order is set by law and it does not bend.

Married or in a civil partnership, with children. Your husband, wife or civil partner receives all your personal possessions, the first £322,000 of your estate, and half of anything above that. Your children share the other half equally between them.

Married or in a civil partnership, no children. Your husband, wife or civil partner inherits everything.

Children, but no surviving partner. Your children inherit everything, shared equally. If a child has died before you, their share passes to their own children.

No partner and no children. Your estate passes to your parents. If they have died, to your brothers and sisters, then to grandparents, then to aunts and uncles, in that strict order.

No surviving relatives at all. Your estate passes to the Crown, which is known as bona vacantia.

The £322,000 figure, and what it really means

The £322,000 statutory legacy applies to deaths on or after 26 July 2023. It replaced the previous figure of £270,000, which had been set in 2020.

It is worth understanding what it does rather than just noting the number. If your estate is worth less than £322,000 and you leave a spouse and children, your spouse takes the lot and the children receive nothing under the intestacy rules. If your estate is worth more, the split above kicks in and your children take a share whether that suits your family's circumstances or not.

For a lot of families that is genuinely a problem. Consider a second marriage where the family home is in one person's name. Under intestacy, a share of that home can end up passing to children from a first marriage while a surviving spouse is still living in it. That is not a hypothetical; it is one of the most common ways intestacy causes real distress.

Note also that the figure is reviewed and changed from time to time, so the number that applies is the one in force on the date of death, not the date you read this.

The people who get nothing

This is the part that catches most people out.

An unmarried partner inherits nothing automatically. It does not matter whether you have been together for two years or forty, whether you have children together, or whether you own a home together. In the eyes of the intestacy rules, you are not related. The term "common law spouse" has no legal effect in England and Wales, which is one of the most persistent and damaging myths in this whole subject.

Stepchildren you never legally adopted are not included. If you raised them from infancy and think of them as your own, the rules still do not.

Close friends, godchildren and carers receive nothing. Neither does any charity you supported for decades.

A surviving partner who is left out may be able to bring a claim under the Inheritance (Provision for Family and Dependants) Act 1975, but that means going to court, at cost, during grief, with no guaranteed outcome. It is a remedy, not a plan.

What happens to your children

Without a will you cannot appoint guardians. If both parents die and no guardian has been named, the court decides who looks after your children, working from whatever information it has. Family members may disagree about what you would have wanted, and social services may be involved while it is sorted out.

Naming a guardian in a will does not bind the court absolutely, but it carries very significant weight, and it means your wishes are on record in a form that is taken seriously.

There is a second point about children and money. Under intestacy, a child's share is held until they turn 18, at which point they receive it outright. Eighteen is young to inherit a substantial sum with no conditions attached. A will lets you set a later age, or use a trust, which is something we cover on our trusts page.

Who sorts out your affairs

With a will, you name executors: people you have chosen and, ideally, asked. Without one, someone has to apply to be an administrator, and the law sets who is entitled to do that, in the same order as the inheritance rules.

That can mean the job falls to someone who does not want it, or is not suited to it, or who is in dispute with the rest of the family. It can also mean a delay while it is worked out.

The practical cost to your family

Intestacy is not only about who inherits. It is slower and more expensive.

Someone has to establish the full family tree and prove it. Assets are harder to trace when nobody was told what exists. Where the entitled relatives are distant or unknown, a professional genealogist may be needed, paid for out of the estate. If there is any disagreement, and intestacy creates plenty of scope for it, legal costs follow.

All of that lands on people who are grieving, at the worst possible moment, and all of it is avoidable.

Common misunderstandings worth clearing up

"Everything just goes to my husband or wife anyway." Only if your estate is under £322,000 or you have no children.

"We're not married but we've been together thirty years, so it's the same thing." It is not. This is the single most common and most costly misunderstanding in the subject.

"Our house is in joint names so it doesn't matter." It may not, for that asset. Property owned as joint tenants passes automatically to the survivor regardless of intestacy. But property held as tenants in common does not, and everything else you own still falls under the rules.

"I don't own enough to bother." Intestacy is not only about money. It is about guardians for children, about who administers your estate, and about your partner's security.

What to do about it

None of this is meant to alarm you. It is meant to make clear that intestacy is a default, not a plan, and that the default frequently does not match what people actually want.

A will lets you decide who inherits and in what shares, name guardians for your children, choose executors you trust, set the age at which children inherit, and provide for people the intestacy rules would ignore entirely. For most people it is far simpler and quicker to arrange than they expect: usually one conversation, a fixed price agreed in writing, and a document ready within a week or two.

You can read more about how wills work, see our fixed fees, or simply get in touch for a free, no-obligation chat about what yours would look like.

This article is general information, not legal advice, and figures and rules can change. For guidance on your own situation, please get in touch.