I am sometimes asked by a client if it is really necessary to have a will, as they believe that if you die without one, firstly your spouse will inherit everything, or if you do not have a spouse, your parents or siblings will inherit. The position is not as straight forward as you might imagine, and I thought a brief summary of the rules of ‘intestacy’ (ie the situation which arises if you don’t have a will) might be useful. As you’ll see, what actually happens where there is an intestacy depends on who you leave behind.
The order of entitlement is determined by s46 of the Administration of Estates Act 1925 (as amended) and is as follows:
| Surviving relative | Share of estate |
| spouse/civil partner but no issue* | All to spouse |
| spouse/civil partner and issue | 1. All personal chattels to spouse 2. Fixed sum to spouse of £270,000 (increasing to £322,000 from 26.7.23) 3. Half of balance of estate to spouse 4. Other half of balance of estate to issue in equal shares, on trust until each respectively attains 18 years of age |
| Issue but no spouse/civil partner | Whole estate to issue in equal shares, in trust until 18 years of age |
| No issue and no spouse/civil partner, but parents surviving | Whole estate to parents, equal shares if both, all to one if only one surviving |
| No issue, no spouse/civil partner, no parents, then in the following order | Brothers and sisters of the whole blood, in equal shares; but if none Brothers and sisters of the half blood, in equal shares; but if none For grandparents in equal shares or the whole to the survivor of them; but if none For uncles and aunts being brothers and sisters of the whole blood of a parent in equal shares; but if none For uncles and aunts being brothers and sisters of the half blood of a parent, in equal shares. |
| Failing the above | The estate passes to the Crown or the Duchy of Lancaster or the Duke of Cornwall for the time being – the crown or Duchy or Duke have power to provide for dependants whether kindred or not of the person who has died, and other persons for whom the person might reasonably have been expected to make provision. |
Note that unmarried couples do not inherit from each other without a will and there is no provision in the rules for divorced spouses, nor for step children.
It is possible, with the agreement of all those who might otherwise inherit, to enter into a Deed of Variation of the intestacy (sometimes called a Deed of Family Arrangement), and such a deed might create a will to reflect what the deceased would have liked to have achieved had he or she actually prepared a will. But this might be fraught with problems if those entitled to inherit on the intestacy either do not agree, or who are children who have not reached the age of 18 and therefore are not in a position to agree. As you can see, it will always be better to write a will before you die, to ensure that those you want to benefit will do so.
