If you die without a valid will, you do not simply leave it to your family to sort out as they see fit. Instead, a fixed set of rules – the intestacy rules – decides who gets what. These rules are rigid and do not take into account your wishes or your family's particular circumstances. As a consequence, they frequently produce outcomes that might have surprised and dismayed the person who died, and understanding them is the clearest argument for putting a proper plan in place.
Who inherits if you don't leave a will?
In England and Wales, the intestacy rules set a strict order of priority. If you are married or in a civil partnership and have no children, then your spouse or civil partner inherits everything. If you have children as well, your spouse or civil partner takes your personal possessions, a fixed "statutory legacy" – currently £322,000 – and half of whatever remains; your children share the other half between them. The split can mean the surviving partner does not automatically receive the whole estate, which comes as a shock to many couples.
If you leave no spouse or civil partner, the estate passes down on a hierarchical basis: first to your children, and if you have no children, your parents, then to any brothers and sisters, and finally on to wider relatives. If no relative within the defined categories can be found, the estate passes to the Crown. At no point do the rules ask what you would actually have wanted.
The gaps that catch people out
The intestacy rules recognise only spouses, civil partners, blood relatives and adopted heirs. The starkest consequence is that an unmarried partner inherits nothing, no matter how long you have lived together or what you may have intended. A surviving cohabitant may have to bring a court claim for reasonable financial provision merely to be housed. This is inevitably an expensive and stressful process which a formal will may have avoided. Similarly, any step-children you never formally adopted are also excluded.
There are other traps. Dying intestate means you cannot appoint guardians for your young children, leaving that decision to be resolved without your say. You lose the chance to do any inheritance tax planning, so more of your estate may go to the taxman than needed and, because the rules are inflexible and the administration can be contentious, intestacy is a common trigger for family fallings-out at the worst possible time.
It is also easy to assume your affairs are "simple" and will pass to those you cherish automatically. While jointly owned property and assets may, not much else will, and the rigid statutory shares can force the sale of a home or a business to balance the entitlements.
In summary, if you do not leave a valid will:
- There is a rigid legal formula that dictates exactly who inherits your money and property, completely ignoring your personal wishes or relationship dynamics.
- Spouses do not get everything automatically, especially if you have children.
- Unmarried partners get nothing.
- Step-children will be completely excluded.
- You miss the opportunity to legally appoint guardians for any minor children.
- You face a heavier tax and the risk of family conflicts.
What to put in place
The remedy is straightforward. You should make a valid, professionally drafted will that says who should inherit, appoints executors you trust, and names guardians for any children aged under eighteen. A will also let you plan for inheritance tax, make specific gifts, and provide for those the intestacy rules ignore, such as an unmarried partner or step-children.
However, a will is not a "once and forget" document. It should be reviewed after any major life change, for instance after a marriage or entering a civil partnership, which automatically revokes an existing will unless it was made in contemplation of that marriage. Any major life events such as a divorce, new children or grandchildren, a death in the family, or a significant change in your assets are all good reasons to revisit a will.
It is also worth considering end-of-life events. A lasting power of attorney lets you choose who would manage your finances or make health decisions if you lost mental capacity during your lifetime – something a will cannot do. Together, an up-to-date will and lasting powers of attorney form the backbone of sensible estate planning.
The salient factor is that of control. If you do nothing, the law imposes a one-size-fits-all answer that may not reflect your wishes and leaves your family facing avoidable cost and conflict. A little planning puts those decisions back where they belong: with you. Taking proper advice and keeping your arrangements under review is time and money well spent.