What Happens When Someone Passes Away Without a Will?

When someone passes away without a legally valid Will, they are said to have died intestate.  In such cases, their estate must be administered under the Intestacy Rules in England and Wales.  This can create challenges for grieving families and often leads to outcomes the deceased may not have intended.  

A common misconception is that everything automatically passes to the surviving spouse or civil partner. However, the intestacy laws follow a strict legal order that may result in unintended consequences, for example:

• Unmarried partners do not have an automatic right to inherit, even if they live with the deceased for many years.

• Stepchildren are not entitled to inherit unless they were legally adopted by the deceased.

• Close friends or long-term partners are completely excluded from inheriting under the Intestacy Rules.  

• If a person dies without children or a spouse, their estate may be distributed to distant relatives, or even to the Crown.  

When someone dies intestate, their estate is distributed in a specific legal order, depending on their family situation.  

• Married or in a civil partnership: If there are no children, the entire estate goes to the surviving spouse or civil partner.  If there are children, the spouse or civil partner receives all personal possessions, the first £322,000 of the estate and half of the remaining estate.  The other half is divided equally between any surviving children, or grandchildren if a child has predeceased.
• Children and adopted children:  If there is no surviving spouse or civil partner exists, the entire estate is divided equally amongst the children.  This includes adopted children but excludes stepchildren unless they were legally adopted.
  
• No spouse or children:  If the deceased had no spouse or children, the estate is distributed in the following order:  
  
  • Parents.
  • Siblings, or their children if a sibling has died.
  • Half-siblings, or their children if a sibling has died.
  • Grandparents.
  • Aunts and uncles, or their children if they have predeceased.

If no eligible relatives can be found, the estate becomes Bona Vacantia and passes to the Crown.  The Treasury Solicitor or the Government will then handle the administration of the estate. 

This legal order does not consider close friends, unmarried partners or step-relatives unless they are legally adopted.  If an individual wishes to leave their estate to non-family members, such as a cohabiting partner or a close friend, they must have a legally valid Will in place. 

Administering an Estate Without a Will

When someone dies without a Will, they also have not named an Executor to manage their estate.  In this case, a family member must apply to the Probate Registry for a Grant of Letters of Administration.  This legal document allows the applicants to act as the estate's Administrator, giving them the authority to: 

• Identify and value the deceased's assets;
• Pay any debts, liabilities or taxes;
• Distribute the estate in line with the Intestacy Rules.

Unlike Executors who derive their authority from a Will upon the Testator's death, Administrators have no legal authority until the Probate Registry issues the Grant of Letters of Administration.  

Who Can Apply to Be An Administrator?

The Probate Registry follows a strict hierarchy, similar to the intestacy order. Those eligible to apply include:

• The surviving spouse or civil partner.
• Adult children of the deceased.
• Other close family members, in the order of the Intestacy Rules.

If multiple family members wish to administer the state (up to a maximum of four), they may apply jointly, but only if they qualify under the Intestacy Rules that determine the order of priority.

Dying intestate can result in unnecessary tax liability that could have been avoided with proper estate planning.  A well-structured Will can help minimise Inheritance Tax through: 

• Strategic use of tax-free allowance and exemptions.
• Gifting during your lifetime. 
• Creating trusts to preserve wealth for future generations.
• Making use of Agricultural or Business Property relief, where applicable.