In­test­acy Rules Ex­plained

A family hugging on top of a hill
Catrin, UK Solicitor
15/05/2024 ● 3 minutes
It's common to wonder what hap­pens to a person's things - like their house, money, and be­long­ings - if they die without a will. That's where in­test­acy rules come in. These rules decide who gets what in cir­cum­stances where there’s no will.

In this Aatos art­icle, we're going to ex­plain what hap­pens when someone in the UK passes away without a Will, which is known as “in­test­acy”.

We'll also break down these rules of in­test­acy to show who can in­her­it and how dif­fer­ent family mem­bers, like spouses and chil­dren, are af­fected.

What is In­test­acy?

In­test­acy is what hap­pens when someone dies without a Will.

Es­sen­tially, it means there's no writ­ten record of what they wanted to do with their be­long­ings or assets. When this hap­pens, cer­tain rules kick in to decide who gets what.

The In­test­acy Rules

Here’s how things typ­ic­ally go in Eng­land and Wales when di­vid­ing up an estate without a Will, fol­low­ing the rules of in­test­acy:

  1. First, if the de­ceased was mar­ried or had a civil part­ner, that person usu­ally gets all of the de­ceased’s per­son­al be­long­ings, the first £322,000 of the estate, and, if there are any chil­dren or grand­chil­dren, half of any of the re­main­ing estate, with the other half being di­vided between the chil­dren or grand­chil­dren, if there are any.
  2. If there are no chil­dren or grand­chil­dren, the spouse or civil part­ner will in­her­it everything.
  3. If the de­ceased had no chil­dren, grand­chil­dren, or spouse/civil part­ner, then the par­ents, brothers and sis­ters, or other close family mem­bers will in­her­it.

In­test­acy means that the law de­cides how your estate is dis­trib­uted, which may not align with your wishes. By writ­ing a will, you can spe­cify who re­ceives your assets and in what pro­por­tions, en­sur­ing that your estate is dis­trib­uted ac­cording to your wishes.

💡 In­test­acy laws do not re­cog­nise un­mar­ried part­ners or co­hab­it­ants as be­ne­fi­ciar­ies, which can leave them without any in­her­it­ance rights. If you want to provide for your un­mar­ried part­ner, you must make pro­vi­sions for them in your Will.

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In­test­acy Rules Varies in Dif­fer­ent Coun­tries

The rules for what hap­pens when someone dies without a Last Will can vary de­pend­ing on where they lived.

In­test­acy Rules in the UK

In the UK, the rules differ slightly between Eng­land and Wales, Scot­land, and Northern Ire­land - es­pe­cially in terms of how much the spouse gets com­pared to the chil­dren.

🏴󠁧󠁢󠁥󠁮󠁧󠁿 🏴󠁧󠁢󠁷󠁬󠁳󠁿 Eng­land and Wales: As we have already covered, if there are chil­dren, the spouse re­ceives all per­son­al be­long­ings, the first £322,000 of the estate, and half of the re­main­ing estate. The other half goes to the chil­dren.

🏴󠁧󠁢󠁳󠁣󠁴󠁿 Scot­land: The spouse re­ceives the house (up to a value of £473,000), fur­nish­ings (up to £29,000), and the first £50,000 of the re­main­ing estate if there are chil­dren (or £89,000 if there are no chil­dren). The rest of the estate is di­vided among the spouse and chil­dren.

Northern Ire­land: Sim­il­ar to Eng­land and Wales, the spouse gets all per­son­al be­long­ings, the first £250,000 of the estate, and half of the rest. The chil­dren re­ceive the other half.

In­test­acy Rules in Other Coun­tries

Other coun­tries have their own sets of rules, too. Here are some ex­amples for the jur­is­dic­tions we get asked about the most:

🇦🇺 Aus­tralia: Rules vary by state, but gen­er­ally, if there is a spouse and chil­dren, the spouse usu­ally re­ceives all per­son­al be­long­ings, a set amount from the estate which is called a stat­utory legacy (the amount of which varies by state), and one-half to one-third of the re­main­ing estate. The chil­dren re­ceive the re­mainder.

🇺🇸 USA: Laws vary sig­ni­fic­antly between states. Com­monly, if there is a spouse and chil­dren, the spouse might re­ceive one-third to one-half of the estate, with the rest dis­trib­uted among the chil­dren. States like Cali­fornia and Texas have unique com­munity prop­erty rules af­fect­ing the di­vi­sion as well.

🇫🇷 France: If there is a spouse and chil­dren, the spouse can choose between a quarter of the estate in full own­er­ship or the use of the en­tirety of the estate for the rest of their life. The chil­dren in­her­it at least three-quarters of the estate.

Read more about dis­in­her­it­ance

Common Com­plic­a­tions in In­test­acy

When someone dies without a Will, di­vid­ing their estate can some­times get tricky. One common issue is family dis­putes.

Dif­fer­ent family mem­bers might have dif­fer­ent ideas about who de­serves what, es­pe­cially if the re­la­tion­ships within the family are strained. This can lead to ar­gu­ments and even legal battles, which can drag on and com­plic­ate the dis­tri­bu­tion pro­cess.

An­oth­er com­plic­a­tion could be claims from un­ex­pec­ted parties. Some­times, people you might not an­ti­cip­ate, like dis­tant re­l­at­ives or friends, might come for­ward claim­ing they were prom­ised something by the de­ceased.

These claims can throw a wrench in the pro­ceed­ings and might re­quire legal in­ter­ven­tion to resolve, which can be time-con­sum­ing and costly.

Read more: Con­test­ing a Will

Avoid­ing In­test­acy with a Last Will

The best way to avoid these com­plic­a­tions is through care­ful estate plan­ning, and the best way to do that is by draft­ing a Last Will.

Un­der­stand­ing the rules of in­test­acy can make a big dif­fer­ence in en­sur­ing your estate is handled as you wish after you're gone. Cre­at­ing a will is the most ef­fect­ive way to pre­vent dis­putes and com­plic­a­tions, giving you peace of mind that your wishes will be re­spec­ted.

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