If someone dies without a Will, they are known as having died ‘intestate’, and the intestacy rules will apply when deciding how their estate (everything they own) will be divided between their loved ones.
This article is written with information on the Intestacy Rules that apply if a deceased person had their permanent home in England or Wales. There are different rules that cover Scotland, Northern Ireland and outside the UK - a good place to start to find out about those rules is on the
UK government website.
Useful terms to understand
Estate - everything the deceased person owned at the time of their death, and any benefits due to them through their death e.g. via pensions, investments and insurances.
Children/grandchildren - under the intestacy rules, only biological or adopted children are entitled to inherit. Stepchildren will only inherit if they are expressly included in a Will.
Intestacy rules - the laws that state who will receive what from a deceased person’s estate.
Probate - Grant of Representation - the paperwork that gives the legal right to deal with* a deceased person’s estate if they have written a valid Will.
Probate - Letters of Administration - the paperwork that gives the legal right to deal with* a deceased person’s estate if there is no valid Will in place.
*e.g. the right to sell their house and distribute their belongings in accordance with their Will. The person who applies for probate will be responsible for identifying the extent of the estate, paying any tax or other outstanding bills from the estate, selling what needs selling, keeping what needs keeping and distributing it to everyone entitled to receive any of the estate.
What happens if you die without a Will?
This largely depends on your personal circumstances at the time of your death (i.e. whether you’re married or in a civil partnership, or not, and whether you have any children and/or grandchildren) and the value of your estate. The intestacy rules apply as follows:
If you are married at the time of your death and have children/grandchildren:
- If your spouse or civil partner survives you by 28 days, they can apply for letters of administration to deal with your estate. They will be entitled to the first £270,000 of your estate, and half of anything over £270,000. This could mean that your house has to be sold.
- Your children will inherit the other half of anything over £270,000: if there is more than one child, they will inherit this in equal shares. They will inherit their share when they reach 18 years old.
- If any of your children have died before you or within 28 days of your death, leaving children of their own, those grandchildren would inherit their parent’s share of your estate when they reach 18 years old.
If you are married at the time of your death but don’t have children or grandchildren:
- Your spouse or civil partner can apply for probate if they survive you by 28 days.
- Your spouse or civil partner will inherit your whole estate.
If you are not married or in a civil partnership at the time of your death and have children or grandchildren:
- Any living relative can apply for probate. If several people are willing to step into this role, the eldest relative will be given priority to apply.
- The entire estate is divided equally between your children, each will receive their share when they reach 18 years old. If you had a partner but weren’t married, your partner won’t inherit anything.
- If any of your children have died before you or within 28 days of your death, leaving children of their own, those grandchildren would inherit their parent’s share of your estate when they reach 18 years old.
If you are not married or in a civil partnership at the time of your death, and don’t have any children or grandchildren:
- Any living relative can apply for probate, with the eldest relative given priority if several relatives wish to apply.
- Your estate will pass to living relatives in a particular order. If there is more than one person in a category of relatives, it will be divided equally between those individuals.
- Parents.
- If there are no parents, then it will pass to any full brothers and full sisters (if a sibling has died before you, their share will pass to any children they have).
- If there are no parents or full siblings or full nephews/nieces, then it will pass to any half brothers and half sisters (or their children, as above).
- If there are none of the above, it will pass to any grandparents.
- If there are none of the above, it will pass to aunts and uncles.
- If there are none of the above, it will pass to half-aunts and half-uncles.
If there is nobody in any of those categories and you die without a Will, your estate will pass to the Crown.
How can you find out if a Will exists?
Obviously, it is far better for everyone concerned if there is a Will in place, because everyone will know what the deceased person wanted to happen to their estate. It will also name executors - people whom the deceased person wanted to apply for probate and handle their affairs. Those executors might be friends or professionals such as solicitors who are better equipped to cope with the stress of dealing with the estate than a grieving relative.
Most people with a Will keep a copy of it at home, so having a look through their paperwork is the most likely way to find it. You will need the original or a certified copy to apply for probate - if you can only find a copy, the Will has been prepared by a solicitor or Will writer, their details will probably be written on the last page as they will probably have been a witness to the signature. You could then approach the solicitor/Will writer for the original if you are named as the executor.
If you can’t find a copy but know that the deceased person used a particular solicitor, you could make enquiries of them, or with other local solicitors in the area. Only a named executor would be entitled to receive the Will to apply for probate.
You can also pay a search company to search local and national records to see if there is a Will kept anywhere else. Not all Wills are recorded centrally, but there is a
National Will Register you could also check.
If all of your enquiries fail to find a Will, the rules of intestacy will apply and Letters of Administration will need to be obtained in order to deal with the estate.
How long does it take to get probate?
Whether there is a Will or not, it typically takes 9 - 12 months for the probate process to be completed, from application to distribution of assets. This can take longer if there is no Will if there is a dispute about who should apply for probate.
The process can also take longer if there is a house to sell, or if there is tax to calculate and pay out. If there is anyone under 18 to inherit, the executors of the estate will need to invest that share of the inheritance and look after it until the person reaches 18.
Why should you make a Will?
If you’re dealing with the death of a loved one who hasn’t left a Will, making a Will of your own may become more of a priority than it has been in the past.
Aside from the fact that it is a simpler process for your loved ones to obtain probate after your death if you have named executors in your Will, writing a Will can ensure that your estate goes to the people you want to benefit from it.
It is very important to note that if you and your partner are not married or in a civil partnership, neither of you will be entitled to anything from the other’s estate under the intestacy rules if one of you dies.
With proper planning in a Will, you can:
- Reduce liability for inheritance tax,
- Reduce the chances of your house being used to pay for local authority care home fees, and
- Ensure that if your spouse/partner remarries after your death your children will still inherit something.
You can also leave your estate and/or specific gifts (e.g. items of jewellery) to certain people who might not otherwise inherit anything under the intestacy rules, e.g. your unmarried partner.
Whatever you do, when you have made a Will make sure your next of kin and anyone mentioned in the Will know that it exists and where it is kept. It is advisable not to keep your original at home (in case of a fire), so you could give the original to an executor to keep safe, and keep a copy at home. Some banks will also allow you to store your Will with them.
What to do with someone’s estate while waiting for probate
It is important to keep the deceased person’s possessions safe and sound so that they can be distributed or sold when probate is granted. Self storage is commonly used for this purpose, with possessions being kept safe in a self storage unit covered by fire, theft and pest protection.
Unfortunately, you won’t be able to sell their house until probate is granted. Most estate agents will advise you not to advertise until probate is granted simply because the length of time it will take for probate to be granted can vary considerably.
Burglaries of unattended houses are a common problem, so storing furniture and furnishings in a storage unit might be safer than leaving it all in a vacant house.
If you think that a
self storage unit might be useful while you sort out probate, get in touch for some no-obligation advice and support on the best solutions for your circumstances.