What happens if you die without a will?

May 29, 2024

Thinking about the concept of death is something many of us avoid, which could potentially be one of the key reasons that more than half of people in the UK do not currently have a Will in place. Unfortunately, this means that many people die without a Will, which can cause very serious issues for their loved ones.

Failing to make a Will can mean your assets will not go to the people you would have wished. It can also mean your loved ones are not properly provided for, leaving them at risk of financial hardship, and it can significantly increase the risk of conflict over your estate, which can damage important family relationships.

Dying without a Will in England or Wales is known as ‘dying intestate’. Their estate will then be divided according to intestacy rules set by the government, which generally favour spouses and civil partners, followed by children. Unmarried partners are at particular risk without a Will as they have no automatic inheritance rights.

If you would like to see an indication of how your estate would be divided if you were to die without a Will, you can use our quick, free intestacy tool to do so.

To provide a general background on the issue of dying without a Will and intestacy, this article covers:

• Who will inherit when someone dies without a Will?
• Who is the executor if there is no Will?
• Who can’t inherit an intestate person’s estate?
• What are the benefits of writing a Will?
• What is needed for a legal Will?
• Do you need a solicitor to make a Will?

This article is purely for informative purposes, it should not be taken as legal advice. If you would like help with making a Will, our Wills solicitors will be happy to support you.

To speak to one of our experts, please call us on 01452 522047 or request a call back and we will contact you shortly to arrange and appointment.

Who will inherit when someone dies without a Will?

Who will inherit your estate is determined by set rules called the Intestacy Rules and depends on the family you leave behind. Only certain people are potentially eligible to inherit under these rules.

If the deceased was married or in a civil partnership then, depending on the size of the estate and whether there are any children, their spouse or civil partner may inherit everything. If there are children and the estate is large enough, they will also inherit a portion of the assets. If a person is predeceased by their children, then grandchildren can also stand to inherit.

Should a person die without a living spouse, civil partner, children or grandchildren, then other close relatives can inherit. Potentially eligible relatives include:

• Parents
• Brothers/sisters or their descendants
• Half siblings or their descendants
• Grandparents
• Uncles/aunts or their descendants
• Half-aunts, half-uncles or their descendants

If there are no such living relatives should you die without a Will, then your estate would pass to the Crown

It’s important to note that an unmarried partner has no automatic right to inheritance which is why making a Will is so important for those who are in long-term relationships and have not married or entered into a civil partnership.

Who is the executor if there is no Will?

Where a person dies intestate, their estate will be handled by an ‘personal representitive’ instead of an executor. Functionally, the role is essentially the same, except the personal representitive’  will need to apply for ‘letters of administration’ instead of ‘grant of probate’ in order to be empowered to deal with the estate.

The personal representitive of the estate will normally be the person first entitled to the deceased’s estate. As some executors elect to do, an administrator can appoint a solicitor to act in the administration of the estate.

Who can’t inherit an intestate person’s estate?

People who cannot automatically inherit assets if you die without a Will include:

• Unmarried partners
• Same-sex couples who are not in a civil partnership
• Relations by marriage
• Close friends
• Carers

However, anyone who was financially dependent on the deceased can potentially make a claim against the estate under the Inheritance (Provision for Family and Dependants) Act 1975. This is not a straightforward process and legal advice is strongly advised if you wish to make such a claim.

What are the benefits of writing a Will?

There are many reasons why having a Will in place is essential, including to:

• Provide financial security for loved ones, inclding dependants
• Ensure your assets go to those you wish to inherit and do not go to people you would not have wished
• Explore options to reduce inheritance tax
• Name guardians for children under 18 years old
• Reduce the likelihood of disputes over the estate (known as ‘contentious probate’)
• Make clear any final wishes
• Choose who will administer your estate

What is needed for a legal Will?

For a Will to be legally valid, the following conditions must be met:

1. The Will must be in writing.
2. The person making the Will (the ‘testator’) must be at least 18 years old.
3. The testator must be ‘of sound mind’ i.e. have the mental capacity to understand the contents and effects of their Will.
4. The testator must be making the Will voluntarily, i.e they are not under undue pressure or duress when making the Will.
5. The testator must sign the Will in the presence of two witnesses.
6. The witnesses must sign the Will in the presence of the testator.
7. The witnesses should not be beneficiaries of the Will or spouses/civil partners of a beneficiary.

While it is not a requirement, it is recommended that the Will is dated as this helps to determine which is the most recent Will if the testator has made more than one Will in their lifetime (or ever makes a new Will in future).

Do you need a solicitor to make a Will?

In theory, you can make a Will yourself without legal advice, but it is risky to do so. Inheritance rules can be complicated and people often fail to consider all of their assets that will need to be dealt with upon their death. Making a DIY Will can lead to all sorts of problems, including an increased likelihood of disputes over the estate when the testator has passed away.

Another way in which an experienced Will solicitor can help is by advising on tax-efficient inheritance planning. This includes making the best use of the nil-rate bands (which allow a certain portion of your estate to be passed on without attracting Inheritance Tax), setting up trusts and other tax-efficient options. Proper estate planning can significantly reduce the tax burden on your assets and increase the amount that passes to your heirs, especially for higher-value estates.

For these reasons and others, having a solicitor draft your Will for you really is the best way to have peace of mind that your estate has been properly dealt with and that your loved one will be taken care of in the way you intend.

Contact our Private Client Team at Tayntons in Gloucester

Do you need help with making a Will in Gloucester, Cheltenham, the Forest of Dean or across Gloucestershire?

Speak to one of our Private Client Team by calling us on 01452 522047 or request a call back and we will contact you shortly.

And remember, to see an indication of how your estate would be divided if you were to die without a Will, you can use our quick, free intestacy tool.