What is Intestacy?

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In the event of a loved one dying without a will, it’s important to understand how their estate will be legally handled. This article provides some helpful advice and guidelines, but should not be considered legal advice.

Intestacy rules can be complicated but by breaking them down into manageable parts, you can begin to understand how they might affect you. We’ve laid out the key points below to help guide you through the mechanics of dying without leaving a will.

What happens if a person dies without a will?

If a person dies without a will, their estate moves into a state of intestacy. The meaning of intestate is literally ‘no witness’ or ‘without testifying’. It is applied to this situation because the person who has died hasn’t legally stated, or ‘testified’, how they want their estate to be divided.

Should a person die and their whole estate is covered by their will, then the job of disbursing the estate amongst the named heirs comes to the executor. They need to record the size of the estate and it’s distribution, reporting it to the government and making sure any inheritance tax that is owed gets paid.

If all of, or a portion of, a person’s estate is not covered by a will, then the disbursement of the estate to potential heirs is subject to intestacy rules, otherwise known as the law of descent and distribution.

When a person’s will covers some of their estate but not all of it, the situation is referred to as ‘partial intestacy’. In this case, the part of the estate not covered by the will would be disbursed as per below.

All of the United Kingdom has the same laws on intestacy, with some variation in Scottish law which we will discuss further below.

Who can inherit if there is no will?

If someone dies without leaving a will then first of all, their spouse or civil partner will inherit all of the estate after any debts, expenses and taxes have been paid. If they have children, the children will receive a portion of the estate after the spouse or civil partner has received the first £250,000 and half of the remaining amount.

If a person has no spouse or civil partner, and no children, then the rules of intestacy lay out how an estate should be disbursed.

What are the rules of intestacy?

Intestacy rules dictate who gets what from the estate of a person who has died, depending on their relationship to that person. Spouses and civil partners are given priority, then children and other blood relatives are accounted for.

Who gets what?

• If the person who has died had a spouse or civil partner but no descendants, the whole estate will pass to their partner.
• If a person has living children, then all of the personal property and belongings of the person who has died, and the first £250,000 will pass - to their spouse or civil partner, and half of the remaining estate. The other half will be split equally amongst the children.
• If the person who died had no surviving spouse/civil partner, then the estate passes to their closest blood relatives in the following order of importance:
  • Children (or their descendants)
  • Parents
  • Brothers or sisters (or their descendants)
  • Half siblings (or their descendants)
  • Grandparents
  • Uncles or aunts (or their descendants)
  • Half uncles or aunts (or their descendants
  • Or the whole estate passes to the crown

Do spouses automatically inherit?

If a person has died without a will then their spouse or civil partner will automatically inherit. However, if a person dies without a will and they and their partners are not legally recognised as such, their partner will not inherit.

Only partners who are part of either a marriage or a civil partnership will automatically inherit in the event of their partner dying without a will. Partners who are unmarried and have no civil partnership will need to write a will if they want to be sure that their partner will inherit in the event of their death.

Do you have to go through probate if there is no will?

If the estate is only money and jointly-owned property then you do not have to go through probate. You also won’t need probate if the estate is found to be insolvent and it’s total worth won’t cover any outstanding tax, debt and expenses.

However, if the estate includes elements that don’t align with the above, you will need probate in order to distribute it legally.

What is probate? Probate is the catch-all term for being legally allowed to manage, collect, liquidate and distribute a person’s estate.

In the event of someone dying without a will, going through probate would mean giving someone who has applied for the role, the legal right to collect and distribute a person’s estate, according to the laws of intestacy.

What are the differences in Scottish law?

Laws of intestacy in Scotland are similar to the rest of the United Kingdom but with some variations. In particular, they have more specific amounts that are due to blood relatives after a spouse or civil partner has been allocated their inheritance. If you die without leaving a will in Scotland, intestacy rules dictate that your estate will be distributed as below:

• If you jointly own your home, your spouse or civil partner will inherit your share in the property (up to the value of £473,000).
• Your spouse or civil partner will also be entitled to your furniture (up to the value of £29,000) and an entitlement to cash (up to £50,000).
• If there is any estate left after the above, your children and spouse/civil partner will be entitled to an equal share of a further one-third of your moveable estate.
• If you die leaving a spouse or civil partner but no children or die leaving children but no spouse or civil partner they will be entitled a one-half share in your moveable estate.
• The remainder of your estate will be distributed according to the hierarchy set out by the Succession (Scotland) Act, listed below:
  • Children take the whole.
  • Either or both parents and brothers and sisters - half to parent or parents and half to brothers and sisters.
  • Brothers and sisters take the whole.
  • Either or both parents take the whole.
  • Husband or wife or civil partner - surviving spouse or civil partner takes the whole.
  • Uncles or aunts (on either parent's side) take the whole.
  • Grandparent or grandparents (on either side) take the whole.
  • Brothers and sisters of any grandparents (on either side) take the whole.
  • Ancestors of intestate more remote than grandparents, on both paternal and maternal sides generation by generation successively take the whole, but if no ancestors survive in any generation their brothers and sisters come before the ancestors of the next more remote generation.
  • Finally, the Crown as ultimus haeres, failing any relatives in the above categories, takes the whole.