If you have overlooked making a will this article applies to you, especially if you are not married or have step-children. You will be amazed at the inconsistencies in the law if you die suddenly without making a will. You could open some disastrous family issues if you inadvertently favour some relatives by ignoring this issue.

Using practical examples, we explore the intestacy rules in detail. Intestacy is the law that applies to your assets if you die without making a will. This article applies to England and Wales only.

Key points

• What happens if you die without a will?
• Changes to intestacy rules
• Practical examples of how the intestacy rules favour some relative over others

What happens if you die without a will?

If you die without a will the law of intestacy applies to your assets. The law will decide how your assets will be distributed after your death. This is unlikely to match exactly what you would have wanted, especially if you are in a relationship but are not married, or have step-children.

Read our ultimate guide to why you should make a will.

You will be amazed at the inconsistencies in the law if you die suddenly without making a will, especially if you are unmarried or have step-children.

Changes to intestacy rules

The new intestacy rules have been in force since October 2014. These have simplified what was a complex process.

Now, the rules are more straightforward, but still produce real-life problems as illustrated below.

Practical examples

Unmarried couples

The main problem with the law of intestacy is that unmarried partners get nothing. It does not matter how long you have been together, or if you have children. If you die without a will and you are not married, then your assets are likely to pass to someone other than your partner.

The only exception to this could be your house, as jointly owned properties are often purchased using a “Joint tenancy”, which means that the survivor would be likely to inherit your share.

If you are unmarried your children, or remoter relatives, will inherit your assets entirely. Your assets will be divided equally between those entitled to inherit.

Unmarried couples with children

In scenarios like this, the surviving unmarried partner is cut out of the estate.

For example, John lives with his unmarried partner Linda and their 2 children Sally and Paul. John dies suddenly, leaving behind assets of £500,000. John would want Linda to get his assets.

Linda is unlikely to receive anything unless there was a jointly held property (in which case she will also inherit any debts). Sally and Paul would inherit £250,000 each.

Step-children or no children

If your partner (married or not) has children from a former relationship, then they will not be able to inherit assets from you unless you make a will. This is a common problem with second families. If one partner has children from a former relationship you should do something to look after the interests of the survivors. The same is true if you are in a relationship and have no children.

For example, David lives with his unmarried partner Diane and Diane’s 2 children Anne and Peter. David dies suddenly, leaving behind assets of £500,000. In this case, neither Diane nor her 2 children would inherit from David. In fact, David’s other relatives would inherit in this order:

1. Children or their descendants (not step-children)
2. Parents
3. Brothers or sisters, and their descendants
4. Half-siblings, and their descendants
5. Grandparents
6. Uncles and aunts, and their descendants
7. Half uncles and aunts, and their descendants
8. The State

In our example, David’s parents (if still alive) would inherit equally. The result would have been the same if David lived with Diane and neither had children (and were unmarried).

Married couples

If you are married, the situation under intestacy rules has been made easier, but is still not perfect.

Estate under £270,000

In this scenario your spouse would get all of your assets, regardless of whether there are any children.

For example, Simon dies leaving £150,000 assets. His wife Katherine would get all of his assets even though they also had 2 children Colin and Fiona.

Married without children

If you are married without children your spouse will now get all of your assets. This is an improvement to the previous intestacy rules.

For example, Eric is married to Deborah, and they have no children. He dies leaving an estate of £500,000. Deborah receives £500,000.

Married with children

If you are married with children your spouse will get £270,000 plus half of the remaining assets. Your children would get the rest of the assets divided equally.

For example, Bill is married to Sarah, and they have 2 children Matthew and Mary. Bill dies leaving assets worth £650,000. Sarah gets the first £270,000. The remaining £380,000 is split in two, with a further £190,000 passing to Sarah. The final £190,000 is split equally between Matthew and Mary. Sarah gets £460,000; Matthew and Mary each get £95,000.

Married with step-children

Remember that step-children are never entitled to receive money under intestacy rules. This is likely to be a problem if you are remarried and at least one partner has children from a former relationship.

For example, Thomas and Brenda are married, and both were formerly married to different partners, with whom they each had children. Thomas’s children are Brian and Mark, and Brenda’s child is Margaret. Let’s assume that Thomas and Brenda each have assets of £500,000. They treat all 3 children equally, and would like for the surviving partner to get all their assets on first death, with the money being divided equally on second death.

Thomas dies first

The situation is different depending on who dies first. If Thomas dies first then Brenda gets the first £270,000. She also gets half the remainder (£115,000), making a total of £385,000. £115,000 would be divided equally between Brian and Mark, giving them £57,500 each. Margaret gets nothing at this point.

If Brenda dies second she would now have assets of £885,000, which would all pass to Margaret. Brian and Mark get nothing at this point. In this scenario their lack of will planning favours Margaret over Brian and Mark.

Brenda dies first

If Brenda dies first then Thomas gets the first £270,000. He also gets half the remainder (£115,000), making a total of £385,000. £115,000 would be given to Margaret. Brian and Mark get nothing at this point.

If Thomas dies second he would now have assets of £875,000, which would be divided between Brian and Mark, getting £437,500 each. Margaret gets nothing at this point. In this scenario their lack of will planning favours Brian and Mark over Margaret.

Intestacy rules interfere

As you can see, their intention would have been that on first death, the surviving spouse should get £500,000, and on second death the 3 children each gets a third of the estate or £333,333 each. Perversely, under the intestacy rules whoever dies first would have a big effect on the amounts passed to their children.

What should you do next?

The obvious solution to problems caused by intestacy is to make a will, especially if you are in a relationship but are not married, or if you have step-children. Contact us and we can put you in touch with a qualified local professional.