What happens if you die without a will in England and Wales

What dying intestate means

Dying intestate means dying without a valid will. It also covers the case where a will exists but fails: it was not signed and witnessed properly, it was revoked by a later marriage, or the original cannot be found and there is no evidence it survived.

When that happens, the estate is distributed under section 46 of the Administration of Estates Act 1925. These are fixed rules with a fixed order. They take no account of what the person said they wanted, what they promised anybody, or who looked after them at the end. A court will not rewrite them because the outcome seems unfair, although a limited class of people can bring a separate claim, which is covered further down.

The rules apply to England and Wales. Scotland and Northern Ireland have their own, and they differ in ways that matter, so an estate with a Scottish element needs separate advice.

What a husband, wife or civil partner receives

The starting point is whether the deceased left children, grandchildren or other direct descendants. The Act calls them issue.

Where there are no children. The surviving husband, wife or civil partner takes the entire estate absolutely. Parents, brothers and sisters receive nothing.

Where there are children. The surviving spouse or civil partner takes three things: all the personal possessions, a fixed sum called the statutory legacy, and half of whatever remains. The children share the other half equally between them, and a child who has died before the parent is represented by their own children.

The statutory legacy is £322,000 for deaths on or after 26 July 2023. It was £270,000 for deaths between 6 February 2020 and 25 July 2023, and the figure that applies is the one in force at the date of death, so an estate being administered now may still be working to an older number.

A practical warning attaches to this. The spouse has to survive the deceased by 28 days to inherit under the intestacy rules. Where a couple die in the same accident within that window, the estate can pass in a direction neither of them would have chosen.

The arithmetic on an actual estate

Take a married man who dies leaving a wife and two adult children. The house is worth £450,000 and is owned as joint tenants. There is £280,000 in savings and investments, a car and household contents worth £20,000, and a £12,000 credit card balance outstanding.

The house never enters the calculation. Held as joint tenants, it passes to the wife by survivorship on the date of death, outside the estate and outside the intestacy rules. What remains is £280,000 of savings and £20,000 of possessions, less the £12,000 debt, so a net estate of £288,000.

The wife takes the personal possessions, which are the chattels, worth £20,000. She then takes the statutory legacy, but the estate holds less than £322,000, so she takes everything that is left and the children receive nothing. The whole £288,000 goes to her.

Now change one fact. Suppose the couple had owned the house as tenants in common in equal shares. The man's half share, £225,000, falls into the estate, taking the net estate to £513,000. The wife takes the £20,000 of possessions and the £322,000 statutory legacy, which is £342,000. What remains is £171,000, and she takes half of that, £85,500, with the children sharing the other £85,500 between them. The children now own a slice of the house their mother lives in.

The only thing that changed was a line on the Land Registry title. It is worth checking which form of ownership applies before assuming anything about what a surviving spouse would receive.

Where there is no spouse or civil partner

With no surviving spouse or civil partner, the estate passes down a fixed ladder. Each level has to be exhausted before the next is reached.

Children first, in equal shares, with the children of a deceased child taking their parent's share between them. If there are no descendants at all, it goes to the parents equally, or to the surviving parent. After that come brothers and sisters of the whole blood, then half-brothers and half-sisters, then grandparents, then aunts and uncles of the whole blood, then half-aunts and half-uncles.

If nobody in any of those classes survives, the estate is bona vacantia and passes to the Crown, or to the Duchy of Lancaster or the Duke of Cornwall depending on where the person lived. The Crown has a discretion to provide for dependants out of that property, and it is a discretion, so there is no entitlement to rely on.

Who the rules leave out completely

This is the part that surprises families, and it is the reason most people make a will in the first place.

An unmarried partner inherits nothing. The length of the relationship makes no difference, and neither does a shared home, shared children or decades of living together. There is no such thing in English law as a common law spouse for these purposes. A surviving partner who needs provision has to apply to the court under the Inheritance (Provision for Family and Dependants) Act 1975, which is expensive, slow and uncertain.

Stepchildren are outside the rules unless they were legally adopted. Somebody who brought up a child from the age of three, without adopting them, leaves that child with no entitlement.

Friends, carers, godchildren and charities receive nothing, however close the relationship or however clear the intention.

None of these gaps can be cured by evidence of what the deceased wanted. A letter, an email, a conversation with a solicitor that never became a signed will: none of it changes the statutory order.

What happens to the family home

How a house passes depends on how it was owned, and this operates separately from the intestacy rules.

Where a couple own as joint tenants, the survivor takes the whole house automatically by survivorship. It never forms part of the estate, so the intestacy rules never touch it. Where they own as tenants in common, each owns a distinct share, and the deceased's share falls into the estate and is distributed under the rules above.

That distinction decides real outcomes. A surviving spouse who owns as a tenant in common with children entitled to half the residue can find that the children own part of the house. The spouse has a right to require that the home be appropriated towards their entitlement, which usually resolves it, but it is a right that has to be exercised within twelve months of the grant.

Who is allowed to deal with the estate

With no will there is no executor, so nobody has automatic authority. Instead, one of the people entitled to inherit applies for letters of administration, and they are known as the administrator.

The order of who may apply mirrors the order of entitlement: spouse or civil partner first, then children, then parents, then siblings, and so on. Until the grant is issued, the administrator has no power to sell property, close accounts or distribute anything, which is a real difference from an executor named in a will, whose authority starts at the date of death.

The probate application fee is £526 where the estate is worth more than £5,000, and there is no fee at or below that figure. Extra copies of the grant cost £2 each when ordered with the application and £16 each afterwards, so it is worth ordering enough at the outset.

Wills that only deal with part of an estate

An estate can be partly testate and partly intestate. A will that gives away specific items and names no residuary beneficiary leaves everything else to the intestacy rules. So does a will whose residuary beneficiary died first with no substitute named.

The result is an estate administered under two sets of rules at once, and it is one of the more common defects in a homemade will. A professionally drafted will names a chain of substitutes precisely so that the residue always has somewhere to go.

What can be done afterwards

Two routes exist once somebody has died intestate.

The first is a deed of variation. The people who inherit under the rules can redirect their entitlement to somebody else, and if the document is signed within two years of the death and contains the right statements, it is read back for inheritance tax as though the deceased had left it that way. This is how families commonly provide for an unmarried partner or a stepchild. It depends entirely on the beneficiaries agreeing, and an adult beneficiary who says no cannot be compelled.

The second is a claim under the 1975 Act, available to spouses, former spouses who have not remarried, cohabitants of at least two years, children, anybody treated as a child of the family, and anybody being maintained by the deceased. The application has to be made within six months of the grant, and the court can extend that only with permission.

Both are more expensive and less certain than a will would have been.

Frequently asked questions

Does my partner inherit if we are not married?

No. The intestacy rules give nothing to an unmarried partner, whatever the length of the relationship, whether you share a home and whether you have children together. The only routes are a deed of variation, which requires the people who do inherit to agree, or a claim under the Inheritance (Provision for Family and Dependants) Act 1975 by somebody who lived with the deceased as a couple for at least two years. That claim has to be issued within six months of the grant and the outcome depends on the court.

How much does a spouse get if there are children?

The surviving husband, wife or civil partner takes all the personal possessions, a statutory legacy of £322,000, and half of whatever is left after that. The children share the other half equally. On an estate of £500,000 with no jointly owned property, the spouse would take the possessions, £322,000 and half of the remaining £178,000, which is £89,000, so £411,000 in total, with £89,000 shared between the children.

Do stepchildren inherit under the intestacy rules?

Only if they were legally adopted. A stepchild who was brought up by the deceased but never adopted has no entitlement under the rules, and neither does a foster child. Where the family agrees, a deed of variation within two years of the death can redirect part of the estate to them. Otherwise a stepchild who was treated as a child of the family can bring a claim under the 1975 Act within six months of the grant.

What happens to jointly owned property?

It depends on how it is held. Property owned as joint tenants passes automatically to the surviving owner by survivorship and never forms part of the estate, so the intestacy rules do not apply to it. Property owned as tenants in common is different: the deceased's share falls into the estate and is distributed under the rules. You can check which applies by looking at the register entry at the Land Registry for a restriction in standard form A.

Can the intestacy rules be changed after somebody dies?

Yes, within limits. Adult beneficiaries who inherit under the rules can sign a deed of variation redirecting all or part of what they receive. Signed within two years of the death and containing the required statements, it is treated for inheritance tax as if the deceased had made that gift. Every affected adult beneficiary has to agree, and where a child or unborn beneficiary is affected the court has to approve it.

Is a will written at home valid?

It can be, if it meets section 9 of the Wills Act 1837: in writing, signed by the person making it with the intention of giving effect to it, and signed or acknowledged in the presence of two witnesses who are both present at the same time and who each sign in their presence. The common failures are witnesses who did not watch the signature, and a witness or their spouse being left a gift, which makes that gift void while leaving the rest of the will standing.

Sources & further reading

• Administration of Estates Act 1925, section 46
• HMRC Inheritance Tax Manual IHTM12122: statutory legacy
• Inheritance (Provision for Family and Dependants) Act 1975
• GOV.UK: applying for probate — fees
• Wills Act 1837

This article is general information, not legal advice. The law changes and depends on your circumstances — always take advice on your specific situation before acting. Last reviewed 21 September 2026. AD Solicitors Limited is a recognised body regulated by the SRA (no. 8011228).