What happens to your estate if you don’t leave a Will?

Most people will know what a Will is. It is a legal document which details how a person would like their “Estate” (which is made up of assets such as property, money and possessions) to be distributed after they pass away. The person who is making the Will is known as the “testator”. The two main reasons for leaving a Will are to protect your children and to provide for the people for whom you want to provide, which is why it is so important to make a Will.

Whilst most people know what a Will is, a surprisingly large number of people pass away without leaving a Will. They are known as being “intestate”. When someone dies without leaving a Will, then quite simply the law dictates how their assets will be divided, and this is done through a specific law that can be very complicated and is called the “rules of intestacy”. These rules also apply if you have made a Will but it isn’t valid, and die without leaving any other Will. We detail below what exactly the rules of intestacy say, but, in summary, what this means is that there may be specific people who you want to inherit your estate and specific people who you definitely don’t want to inherit your estate. However, if you haven’t left a Will, the rules of intestacy could dictate that the very people you don’t want to inherit do so, whilst the people you do want to inherit end up with nothing. By not leaving a Will, you are effectively surrendering your right to make your wishes known, protect your children and provide for the people that you want to provide for.

The rules of intestacy lay out who exactly can inherit the estate of a person who has died intestate, and this is limited to relatives, namely:

• spouses or civil partners
• children
• grandchildren
• great-grandchildren
• parents
• siblings
• siblings’ children
• siblings’ grand children
• remoter relatives

There is no provision for anyone who is not a relative to inherit an estate in the rules of intestacy, so even if you’re the very best friend of the deceased who has known them since their school days, or have been in a relationship with the deceased for the past twenty years but not formalised that relationship, you will not be entitled to inherit anything, whereas a distant cousin who has never even met the deceased may be entitled to inherit.

So, spouses or civil partners can inherit, but not partners who were not married to the deceased or in a civil partnership with them. If you and your spouse have divorced or had your civil partnership ended, then you also cannot inherit. However, if you have only separated but are still legally married or in a civil partnership then you can still inherit, even if you haven’t spoken to each other for years.

If there are no surviving children, grandchildren or great grandchildren, but there is a surviving spouse or civil partner then the spouse or civil partner inherits the entire estate.

This probably seems relatively straightforward so far, but after this it starts to get more complicated. In situations where there is a surviving spouse or civil partner AND surviving children or grandchildren, AND the estate is valued at more than £250,000, then the spouse or civil partner inherits all of the deceased person’s personal belongings and the first £250,000 of the estate (together with interest on that sum). The remainder of the estate is then valued, with the spouse or civil partner inheriting one half and the personal representatives of the deceased holding the other half on trust for the deceased’s children (or grandchildren).

If there is a surviving spouse or civil partner but there are no surviving children, grandchildren or great grandchildren, the surviving spouse will inherit the whole estate irrespective of its value.

If there is no surviving married or civil partner, the children of the deceased inherit the whole estate. If there are two or more children, the estate is divided equally between them. Minors can only inherit once they reach the age of 18, unless they marry or enter into a civil partnership before then. Grandchildren and great grandchildren inherit only if their parent or grandparent has died before the intestate person, and thereby inherit what their parent or grandparent would have inherited.

In scenarios where there aren’t surviving spouses or civil partners, children, grandchildren or great grandchildren, then the estate passes in order to parents, brothers and sisters, or to nieces and nephews. If the intestate person didn’t have any of these survive them, then it next passes to grandparents, uncles and aunts and cousins, and again the rules can be quite complicated surrounding this.

Finally, if there is no surviving relative that is eligible to inherit the estate, then that estate still does not pass to an unmarried partner or longstanding best friend, but instead goes to the Crown. The Treasury Solicitor then becomes responsible for dealing with the estate in a situation called bona vacantia.

In summary then, if you want specific people to inherit in your Will – unmarried partners, friends, even carers, then you need to make sure you leave a Will. Otherwise, the outcome is that your estate will be distributed in a very bureaucratic and complicated way. Sills & Betteridge have an experienced, knowledgeable and dedicated Wills, Trusts and Probate team which includes full members of the Society of Trust and Estate Practitioners (STEP) and the Association of Contentious Trust and Probate Specialists (ACTAPS). We can help to ensure that your will full reflects your wishes and intentions. A member of our team will prepare your Will for you, discussing with you who should deal with your affairs when you die, who should benefit from your assets (including how and when), and where appropriate appoint a guardian for your children. We can provide our full range of services via our network of offices in [office_list]. For more information, please contact us on 0800 542 4245, email us on info@sillslegal.co.uk, or call into your local office.