Avoiding intestacy

As well as the many positive reasons for making a will, there is another, strong legal reason for doing so – to avoid intestacy.

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; or
  • they made a valid will, but it has since been revoked or destroyed.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.

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; and
  • a new will is made if anything happens to revoke the will – for example if you get married.

Rules of intestacy

If you die intestate – i.e. without a valid will – then your estate will be distributed according to rules of intestacy set out in law, starting with your spouse or civil partner, then – in order – to 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.

For example, it is commonly thought that if a person dies without leaving a will, their whole estate will pass automatically to their spouse or civil partner. But this is not necessarily the case. In an intestacy, if the value of your estate is greater than £270,000, the law would require part of your estate above that value to go to your children. Under a will, you can give your entire estate to your partner. Some other key differences are described below.

With a will Without a will
With a will, all the estate can be left to your surviving spouse or civil partner. In an intestacy, if the value of your estate is greater than £270,000, the law makes provision for shares to go to your children (see below).
A will can include donations or legacies to charities or other institutions. Intestacy makes no provision for such donations.
A will 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.
A will can include gifts of personal belongings to any person. Under intestacy, all personal belongings automatically go to your spouse or civil partner.
If you have a permanent partner, but you are not married or in a civil partnership, you can make provision for them in the will. Intestacy does not provide for a partner who was not your spouse or civil partner.
With a will, you can vary the shares in which your estate is to be divided. On intestacy, the law decides the proportions. After your spouse or civil partner’s share, all distribution of the estate is in equal parts.
With a will, provision can be made to reduce the amount of inheritance tax payable on the estate, or to decide who is liable to pay it. On intestacy, the liability to tax cannot be varied.
In a will, if there is no family, you can leave your estate to anyone. On intestacy, if there is no family, your estate goes to the Crown.
In a will, you can choose your own personal representatives as executors. In an intestacy, people who would be entitled to inherit can apply to be the administrators of the estate.
You can use a will to appoint guardians for your children. In an intestacy, the guardians are selected by the court.

Additionally, 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. For more information, please see our page Can you disinherit family and dependants? 

A basic rule of intestacy is that if you leave behind a spouse or civil partner and children, then 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, then 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. (If any of your children have already died leaving children of their own, their portion passes down a generation.)

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.

For further information, please see our page Partial intestacy.