Intestacy occurs when someone dies without a Will. This can be because they have never made a Will. Or it might be because:
they made a Will, but it was not correctly made
they made a Will, but it cannot be found
they made a valid Will, but it has since been revoked or destroyed.
In such circumstances, the deceased person is treated as never having made a Will at all - they are said to have died intestate.
To avoid the problems of intestacy or partial intestacy, it is essential to make a Will.
As part of that, it is crucial to ensure that:
it has been validly made
it covers your whole estate
it is stored in a safe place and that your Executors know where it is
a new Will is made if anything happens to revoke the Will.
Rules of intestacy
If you die without a valid Will, your estate will be distributed according to rules of intestacy set out in law. These start with your spouse or civil partner, then children, grandchildren, parents, siblings and other specified family members.
Sometimes the effect of this may be just the same as you would have chosen if you had left a Will, but more often than not there will be important differences.
Some key differences are described below.
With a Will | Without a Will |
The whole estate can be left to your surviving spouse or civil partner. | If the value of your estate is greater than £270,000, shares will go to any children (see below). |
You can include donations or legacies to charities or other institutions. | Intestacy makes no provision for such donations. |
You can include gifts to individual people outside the family – for example friends, godchildren and carers. | Intestacy does not make any provision for people outside the family. |
You can include gifts of personal belongings to any person. | All personal belongings automatically go to your spouse or civil partner. |
You can make provision a permanent partner if you are not married or in a civil partnership. | Intestacy does not provide for a partner who was not your spouse or civil partner. |
You can vary the shares in which your estate is to be divided. | The law decides the proportions. After your spouse or civil partner’s share, all distribution is in equal parts. |
Provision can be made to reduce the amount of inheritance tax payable, or to decide who is liable to pay it. | The liability to tax cannot be varied. |
If there is no family, you can leave your estate to anyone. | If there is no family, your estate goes to the Crown. |
You can choose your own personal representatives as Executors. | People who would be entitled to inherit can apply to be the administrators. |
You can appoint Guardians for your children. | Guardians are selected by the court. |
A basic rule of intestacy is that if you leave behind a spouse or civil partner and children, your spouse or civil partner will take all personal belongings and the first £270,000 of your estate. If your estate is valued at more than £270,000, your spouse or civil partner will additionally receive 50% of anything above that amount and the other 50% will be divided equally between your children.
It is possible in principle to exclude specific people from inheriting part of your estate. In an intestacy, no one is excluded who could qualify because of their family relationship to the deceased. However, note that even if the Will does exclude individuals from sharing, close family members or other dependants may have a claim against your estate if the Will does not make sufficient provision for them.
Partial intestacy
It may be that you have left a valid Will, but for one reason or another it does not account for the whole of your estate. In that case, the unaccounted part Will be distributed according to the rules of intestacy. This is known as a 'partial intestacy', and can make administering your estate a complicated process.