Intestacy Rules Explained

If the deceased leaves a spouse or civil partner and no children, the spouse or civil partner inherits the whole estate. If there are also children, the spouse or civil partner takes the personal chattels (personal possessions), a fixed statutory legacy set by law, and half of whatever remains, with the other half held for the children.

The statutory legacy is a specific sum fixed by law that is periodically reviewed and changed, so it should not be assumed to be a particular figure. Couples who are separated but not yet divorced are still treated as spouses under these rules, which can produce results neither party would have chosen.

If there is no surviving spouse or civil partner, the estate passes to children in equal shares. If there are no children, it passes down the family tree in order: first to parents, then to siblings (or their children if a sibling has already died), then to half siblings, then grandparents, then aunts and uncles, and so on.

Each stage is only reached if there is nobody surviving in the stage above. This is sometimes called the 'statutory order' and it continues through increasingly distant relatives before the estate is treated as ownerless.

Where children inherit under intestacy, their share is held on what are called statutory trusts until they reach eighteen, or marry or enter a civil partnership earlier. Someone, usually the administrator, has to manage that money in the meantime, which is an added responsibility that a will can avoid by naming trustees and setting different ages for access.

This is one of the areas where a will offers real practical benefit over intestacy, particularly for parents who would prefer their children to inherit later than eighteen, or who want named people managing money on their behalf.

The intestacy rules do not recognise cohabiting partners, however long the relationship or however interdependent the couple's finances. They also do not recognise stepchildren unless they were formally adopted, and they do not allow for gifts to friends, godchildren or charities.

Anyone who falls outside the rules but was financially dependent on the deceased may have to bring a claim under the Inheritance (Provision for Family and Dependants) Act 1975, which involves court proceedings rather than an automatic entitlement.

Imagine someone dies leaving a spouse and two children, with an estate worth more than the statutory legacy. The spouse takes the personal chattels, the fixed statutory sum, and half of the remaining balance outright. The other half of the remaining balance is divided equally between the two children, held on statutory trusts if either is under eighteen. If the same person had left no spouse but two children instead, the whole estate would be divided equally between the children.

Now imagine someone dies with no spouse, no children, and both parents already deceased. If they have two surviving siblings, the estate passes to those siblings in equal shares. If one sibling died earlier but left children of their own, those children would generally step into their parent's share between them, rather than that share passing only to the surviving sibling.

It is worth pausing to check whether the intestacy rules would produce a result you would actually want, since many people assume the outcome will simply be sensible without checking the detail.