What Happens If Someone Dies Without a Will?

Detailed Explanation

Many people assume that without a will "the family works it out" or that everything goes to the husband or wife. In most countries neither is true. The law sets a fixed formula, and it applies whatever the person said out loud, whoever cared for them, and whoever they had fallen out with. See the Wills, Probate & Estates hub for how this fits alongside the rest of estate administration.

What "intestate" means

A person dies intestate when they leave no valid will. That covers people who never made one, and people whose will turns out to be invalid, for example because it was never signed or wasn't properly witnessed. Partial intestacy happens when a will exists but doesn't deal with everything; the will covers what it covers, and the intestacy rules fill the gap.

Which rules apply matters. Generally, the law of the country (or state) where the person had their permanent home governs their money and possessions, while land and buildings follow the law of the place where the property is. An estate with a house in another country or state can involve two sets of rules.

Who inherits: the general pattern

The details differ widely, but most intestacy laws follow a similar order:

1. Spouse or civil partner, and children. The surviving spouse or partner usually comes first. Many systems give them everything if there are no children, and split the estate between them and the children if there are, often with a fixed cash sum to the spouse before any split.
2. Children, with no spouse. Children usually share equally. If a child has already died, their own children (the grandchildren) usually take that share.
3. Wider family. If there's no spouse or descendants, the estate goes to parents, then brothers and sisters, then more distant relatives such as grandparents, aunts and uncles, in a set order. Each level inherits only if nobody exists at the level above.
4. No one. If no qualifying relative can be found, the estate goes to the state or the Crown.

Who gets left out matters just as much. Friends, carers and charities never inherit under intestacy. Stepchildren who were never legally adopted usually don't either. Unmarried partners are treated very differently from one country to the next.

Who manages the estate

With no will there's no executor, so a close relative, normally the person with the strongest claim under the rules, applies to the court for letters of administration (or the local equivalent) and becomes the administrator. The administrator then does the same job as an executor: collecting assets, paying debts and taxes, and distributing the estate, except they must follow the intestacy formula rather than a will. The process is covered in what does an executor do, and when a grant is needed at all in what is probate.

Assets that pass outside the estate aren't affected by intestacy at all. Jointly owned property held as joint tenants usually goes straight to the surviving owner (see what happens to jointly owned property when one owner dies), and life insurance, pensions and retirement accounts with a named beneficiary are usually paid under their own rules.

How Intestacy Differs Between Countries

Australia

Each state and territory has its own intestacy legislation, so the shares differ. Broadly, a spouse or qualifying de facto partner commonly takes the whole estate where any children are also their children, while children from another relationship usually lead to a split. Superannuation is paid by the fund's trustee under its own rules, not the intestacy formula.

England and Wales

The Administration of Estates Act 1925 sets the order. A surviving spouse or civil partner with no children or other descendants inherits everything. Where there are children, the spouse or civil partner receives the personal possessions, a fixed sum (£322,000 since July 2023, raised periodically) and half of the remainder; the children share the other half. With no spouse, the order runs through children, parents, brothers and sisters, grandparents, and aunts and uncles. If there's no one, the estate goes to the Crown as bona vacantia. Unmarried partners have no automatic entitlement, however long the relationship, though they may be able to claim through the court under the Inheritance (Provision for Family and Dependants) Act 1975.

Scotland

Scotland has its own rules under the Succession (Scotland) Act 1964. A surviving spouse or civil partner has "prior rights" to the home, its contents and a cash sum, up to set limits, and spouses and children also have "legal rights" to a share of the moveable estate (such as money and investments) before the rest is divided. The figures are set by law and change from time to time.

United States

Intestacy is set by state law, and states differ considerably. In community property states, the surviving spouse commonly already owns half of the couple's community property and may inherit the deceased's half too. California is an example: a surviving spouse receives the deceased's half of the community property, and all, half or a third of their separate property depending on whether there are children, parents or siblings. If no relatives qualify, the property escheats (passes) to the state. Most states give no automatic share to an unmarried partner.

How it works where you are

• In Australia: what happens if someone dies without a will in Australia, including the state intestacy formulas, de facto partners, letters of administration and family provision claims.

Things to Consider

• Search properly for a will first. Check the person's papers, their solicitor or lawyer, their bank and any will registry. A will found after administration has started causes real complications.
• Family agreement doesn't override the law. Relatives can sometimes agree to redistribute what they inherit, but they can't simply ignore the rules, and assets usually can't be released until someone has formal authority.
• Blended families are where intestacy most often goes wrong. A second spouse, children from an earlier relationship and an unmarried partner can end up with outcomes nobody intended.
• The court can sometimes adjust the result. Many countries let certain people, such as a spouse, partner, child or dependant, ask a court for more if the formula leaves them without reasonable provision. Time limits are strict and vary by country.
• When to get advice. For a contested estate, an estranged or blended family, an unmarried partner, or assets in more than one country or state, advice from a lawyer who handles estates in the relevant jurisdiction is genuinely worthwhile.

Common Mistakes

• Assuming the spouse gets everything. Often true only where there are no children, or only children of that relationship.
• Assuming a long relationship counts as marriage. In some countries, including England and Wales, an unmarried partner inherits nothing automatically, however long they lived together.
• Relying on verbal wishes or unsigned drafts. Courts in some places can accept an informal document as a will in narrow circumstances, but that's the exception. Promises and notes usually carry no legal weight.
• Delaying because "we all agree anyway". Agreement doesn't give anyone the power to sell property or close accounts. Someone still needs to apply for a grant.
• Applying the wrong country's or state's rules. Online guides often describe one jurisdiction's formula as if it were universal. The rules that count are those where the person lived, and where any land is.