The rules of intestacy explained

The rules of intestacy explained

The distribution of an estate without a valid Will is not always a straightforward process. Without a Will, the Rules of Intestacy ultimately decide who is eligible to receive the estate, even if this goes against the verbal wishes of the deceased. 

In this blog post, we explain the Rules of Intestacy and how writing a Will ensures that your estate is divided and passed to the ones you love according to your wishes.


What are the Rules of Intestacy?

A valid Will sets out how a person’s estate will be divided, based on their personal preferences as to who they would like to receive what within their estate such as assets, property and valued keepsakes, once they have passed.

Without a valid Will, a person’s estate will be divided according to a standard set of rules and in this scenario, property and possessions don’t always go to loved ones. The following rules are strict and applicable in England and Wales:

  • The surviving partner does not automatically receive the estate of the deceased. Cohabiting and long-term partners are not entitled to anything.
    Step-children are not recognised for the purpose of inheritance, only biological and adopted children are recognised.
  • If the person who died was married or in a civil partnership the entire estate will go to the surviving partner.
  • With this set of rules, property and possessions don’t always go to loved ones as the deceased may have wished, and without legal support, this decision is often difficult to overturn.
  • Partial Intestacy occurs when the Will doesn’t cover or account for all property and possessions. Any uncovered possessions will be divided under the Rules of Intestacy, rather than what is outlined in the Will.


How do the Rules of Intestacy divide estate?

If the deceased was married with no children, all possessions and property would go to the partner.

However, if the deceased was married with children, and if the estate is worth more than £322,000, the updated Statutory Legacy sum, the surplus funds would be divided evenly between the partner and child(ren). For example, if an estate has a value of £500,000, the first £322,000 is automatically passed to the partner, and the remaining £178,000 is divided between the partner and child(ren). Therefore, the partner will receive an additional £89,000, and the other half is divided between all children equally.

With no partner through marriage, the complete estate and possessions will go to the children under the Rules of Intestacy. With no marriage partner and no children, the estate will go to the immediate family which includes, but is not limited to, parents, siblings, grandchildren, and other relatives.

In a scenario where a son or daughter has died before the deceased, their share of the inheritance will be divided among their children (the grandchildren) as if they were a child of the deceased. When the person who died intestate, without a valid Will in place, has no surviving relatives or a partner through marriage, the property and possessions go to the crown, in a process known as Bona Vacantia.

Under these rules, joint assets are not covered and they are passed to the shared owner automatically. This may be against the deceased’s wishes, but strict rules automatically pass over this ownership.

If a written, valid will is outdated and beneficiaries in the will are deceased, their share of the inheritance will be covered under the Rules of Intestacy, known as partial intestacy. They will not be divided between the other beneficiaries but instead will be divided according to the rules.


Who isn’t recognised under the Rules of Intestacy?

Although the rules don’t recognise cohabiting or long-term partners, it is possible to claim possessions with legal support, or the family of the deceased can dispute the distribution, and redistribute their entitlement on the partner’s behalf. Divorced or ended legal civil partnerships equally have no claim to the estate.

The Rules of Intestacy also may not recognise children as the deceased would hope. Only biological and legally adopted children are recognised and will receive an allocation of possessions and property. Step-children and foster children are not recognised, and thus receive nothing, regardless of the family dynamic. Even if the deceased would have wanted them to be a beneficiary, if it is not in a Will, the rules do not account for this.

If the Rules of Intestacy do not recognise someone as eligible, but they believe they are entitled, they can apply and seek legal advice. The recognised beneficiaries can make a deed of family arrangement or variation if every beneficiary agrees. This means they will alter the amount received to share with the non-applicable person.  Redistribution of an estate must be agreed upon by every beneficiary, which can sometimes complicate the process.


Man signing a will to avoid Rules of Intestacy.


How is the process carried out?

Firstly, it must be determined who will administer the estate. Providing they are not minors, all beneficiaries are eligible to act as administrators. The person in this role carries a large burden, as the estate administrator can be held personally and financially liable for any loss, even if it is a genuine mistake.

Next, it must be decided who is to benefit from the estate. All eligible beneficiaries are researched and traced. In some scenarios, the person who has died intestate may not have even known the beneficiaries. Tracing beneficiaries often takes a lot of time and money, which in turn lowers the final estate value, as required funds are taken from the estate during this process.

If the beneficiaries are minors, they will inherit when they turn 18, or if they marry/form a civil partnership under 18. Until this point, a trustee will manage their inheritance. Individuals aside from the parent can represent a child, only if it is approved by the probate court. This is particularly important if it is the parent of the minor who has died intestate.

When inheriting according to the Rules of Intestacy, a spouse must wait for a ‘survivorship period’ to pass. This means they must survive during this period and they cannot receive their possessions or estate for 28 days.


Why write a will?

We know writing a Will and considering life after you have passed can be difficult and emotional. Our expert team can guide you through this process, making it as stress-free as possible, and supporting you every step of the way. Writing a Will can prevent further distress for family and friends after your passing as the Rules of Intestacy can cause complications in dividing the estate. Writing a Will means your possessions and property can be distributed according to your exact wishes.

It is also important to update your existing will, to make sure all beneficiaries are still alive, and all of your estate and possessions are covered, to avoid cases of partial intestacy.

At Peter Ross, we can assist in Will writing and storing your documents safely to make for a smooth and secure process. Our team works hard to respond quickly to any urgent matters or changes. You can book your free, no-commitment consultation here.

If you require support with probate or would like to know more about the Rules of Intestacy, please get in touch with us at 0191 488 8200 or email

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