Intestate Estates

Have you written a will?

As individuals move through life, wills are often acknowledged as important, but frequently put on
the back burner. Writing a will allows individuals to have control over their estate, reduces stress for
next of kin, can avoid disagreements, reduce Inheritance Tax and make specific provisions for
children and grandchildren, as well as allowing funeral requests to be made clear.

Where wills are not written, individuals die ‘intestate’. When an individual dies without leaving a
valid will, their estate becomes subject to intestacy laws and must be shared out according to these
rules of intestacy. The rules dictate how the individuals money, property or possessions should be
allocated, which can often not be the way the individual would have wished their money and
possessions to be distributed. This is often considered the most significant disadvantage, as the
estate may not pass to the people the individual wants to benefit.

Intestacy is even more complicated where estates are multi-jurisdictional such as involving overseas
assets and property where overseas jurisdictions will have their own succession rules.

This note addresses how an intestate UK estate would operate under differing circumstances.

A. Where there is a surviving spouse (or civil partner) and children

The spouse receives all personal chattels, the first £270,000 of the estate plus half the remaining net
assets (residuary estate). They only receive this if they survive the deceased spouse by at least 28

The other half of the residuary estate goes to the children equally (or their issue) i.e. one half of the
value of the estate above £270,000, divided equally by the children of the deceased. This would be
on statutory trusts if the children are under 18 years old.

It is important to note that:

  • If an individual is divorced or if a civil partnership has been legally ended, they cannot inherit under the rules of intestacy 
  • Partners who separated informally can still inherit under intestacy rules. 
  • Co-habiting partners who were not married nor in a civil partnership cannot inherit under intestacy rules.
  • A child whose parents are not married or have not registered a civil partnership can inherit from the estate of a parent who dies intestate (and can also inherit from grandparents or great-grandparents who have died intestate).
  • Adopted children (including step-children adopted by their step-parent) have rights to
    inherit under the rules of intestacy

B. Where there is a surviving spouse but no surviving children, grandchildren or greatgrandchildren

The partner will inherit all personal chattels and the whole of the estate with interest from the date
of death.

C. Where there is no surviving spouse (who has survived by 28 days), but surviving children.

Children receive the whole estate divided equally between them (on statutory trusts if under 18
years old), which applies however much the estate it worth.

If the children are deceased, their children (if any) receive their share.

D. Where there is no surviving spouse and no children

The parents receive the whole estate equally.

E. Where there is no spouse, no children or surviving parents

The siblings receive the whole estate divided equally. If deceased, their children (if any) receive their

F. Where there are no surviving relatives

In the case there are no surviving relatives who can inherit an estate under intestacy laws, the estate
passes to the Crown. This is known as Bona Vacantia. The responsibility for dealing with the estate
then lies with The Treasury Solicitor.

How we can help

Although we do not draft wills ourselves, we work with a number of professional advisers to assist
clients in drafting their wills. We are particularly involved in the Inheritance Tax and Capital Gains
Tax planning through wills, ensuring that the deceased’s estate should pass as tax efficiently as
possible to the beneficiaries.

If you have any queries in relation to drafting a will, or revising your will, please contact Rachel
Montgomery ( or your engagement partner.

The information in this article is believed to be factually correct at the time of writing and publication, but is not intended to constitute advice.  No liability is accepted for any loss howsoever arising as a result of the contents of this article. Specific advice should be sought before entering into, or refraining from entering into any transaction.


Written by
Rachel Montgomery