The Law Of Intestacy Explained

Key Points

As of January 2026, the Government Legal Department's Bona Vacantia Division listed around 5,500 unclaimed intestate estates in England and Wales still awaiting a rightful heir, some dating back well over a decade. Each entry on that list represents someone who died without a will, leaving the Administration of Estates Act 1925 to decide, by fixed formula, who should inherit the deceased’s property and assets. Many of those estates will eventually be traced to a distant relative; a smaller number never will, and the money simply sits with the Crown until the 30 year claim window closes.

The formula behind that list applies whether the estate is worth £15,000 or £1.5 million, and it takes no account of who you actually wanted to benefit. Long-term partners you never married, stepchildren you raised as your own, and close friends who supported you for years, all sit outside the statutory categories entirely, however deserving their claim might feel to you.

You can only remove the risk of that formula applying to your own estate by making a valid will while you still can. Our experienced Wills and Probate Solicitors can help you clarify your wishes, draft a legally valid document, thereby protecting your family from the uncertainty and stress of dealing with the intestacy process.

What is the law of intestacy?

The law of intestacy is the fixed statutory order set out in section 46 of the Administration of Estates Act 1925, which decides who inherits your estate when you die without a valid will, or with a will that does not dispose of everything.

Section 46 replaces your own wishes with a fixed hierarchy of relatives, applied in England and Wales regardless of your personal circumstances, informal promises, or how close you were to any individual outside that hierarchy. The rules apply automatically the moment a court is satisfied no valid will exists, and an administrator, rather than an executor you chose, then applies for a grant of letters of administration to carry the formula out.

The estate that intestacy actually distributes is what remains after debts, funeral costs, and administration expenses have been paid. Jointly owned property that passes automatically by survivorship, and assets held in trust or through a pension nomination, generally fall outside the intestate estate altogether and go to the named survivor or beneficiary regardless of the intestacy rules.

Who inherits if you have a spouse?

Your surviving spouse or civil partner takes your entire estate automatically only if you leave no children; where children survive you, your spouse receives a fixed statutory legacy first and shares the remainder with them.

Under section 46 of the Administration of Estates Act 1925, a surviving spouse or civil partner takes all personal chattels absolutely, plus a statutory legacy currently set at £322,000, a figure raised from £270,000 by the Administration of Estates Act 1925 (Fixed Net Sum) Order 2023 for deaths on or after 26th July 2023. Where the estate exceeds that legacy, the surplus is split equally: half to the spouse, half shared between the children. Where the estate is worth £322,000 or less, your spouse or civil partner takes everything and the children receive nothing.

This split can produce results few couples would actually choose. A surviving spouse in a modest estate that includes a jointly valued family home can find a significant share of the non-jointly-owned assets diverted to adult children, at a point when they may need every asset simply to maintain their standard of living.

Do unmarried partners inherit under the intestacy rules?

No, an unmarried partner has no automatic right to inherit under the intestacy rules in England and Wales, regardless of how long you lived together or whether you owned property jointly.

Cohabiting partners sit completely outside the statutory categories in section 46 of the Administration of Estates Act 1925, no matter how many years they shared a home with you or how financially interdependent you were. A surviving partner who was not married or in a civil partnership with you receives no automatic share of your estate and may need to apply to the court under the Inheritance (Provision for Family and Dependants) Act 1975 if they lived with you for at least two years immediately before your death or were financially dependent on you.

Step-children you never formally adopted fall into the same gap. Raising a stepchild for decades gives them no automatic entitlement whatsoever under intestacy, so a will naming them explicitly is the only reliable route to providing for them.

What if no relatives can be found?

If no relative within the statutory categories can be traced, your entire estate passes to the Crown, the Duchy of Lancaster, or the Duchy of Cornwall as bona vacantia.

Section 46 of the Administration of Estates Act 1925 works down a hierarchy after a spouse and children:

Every category must be checked and exhausted, in order, before an estate can properly be treated as passing to the Crown. The Crown does retain a discretion to make ex-gratia payments to dependants, or to others the deceased might reasonably have been expected to provide for, but such payments are never guaranteed and offer no substitute for a will naming the people you actually want to benefit.

How can I avoid the intestacy rules?

You avoid the intestacy rules entirely by making a valid will under section 9 of the Wills Act 1837, naming your own beneficiaries and executors instead of relying on the statutory formula.

For a will to be valid under section 9 of the Wills Act 1837, it must be in writing, signed by you, and witnessed by two people present together at the time of signing. Once validly made, a will lets you provide for an unmarried partner, name a stepchild as a full beneficiary, choose your own executor, and set out exactly how your estate should be divided, none of which the intestacy rules allow.

A will also needs reviewing after marriage, which revokes an earlier will under section 18 of the Wills Act 1837 unless it was made in contemplation of that marriage, and after divorce, which does not revoke a will but causes any gift to a former spouse to lapse under section 18A.

Click here for more information on what happens if you die without a will.

Click here for more information on whether your ex-spouse can inherit from you after divorce.

Frequently asked questions

Does a will avoid probate entirely?

No, a will does not avoid probate. Your executor will usually still need a grant of probate to access and distribute your assets, but a will lets you choose that executor and dictate exactly how the estate is shared, rather than leaving both decisions to the intestacy rules.

Can I write my own will without a solicitor?

Yes, you can write your own will, provided it meets the formalities in section 9 of the Wills Act 1837. Many DIY wills fail because of incorrect witnessing or ambiguous wording, which is why professional drafting reduces the risk of your estate falling back into partial intestacy.

What happens to jointly owned property under intestacy?

Property held as joint tenants passes automatically to the surviving joint owner and falls outside the intestacy rules entirely. Property held as tenants in common forms part of your intestate estate and is distributed under the statutory formula instead.

Talk to Pearcelegal

If you would like us to look at your circumstances and put a will in place that reflects what you actually want, get in touch with our team for a free initial consultation.

Author: Jodie Hall

Jodie Hall is a Solicitor in the Private Client team at Pearcelegal, based in Solihull, West Midlands. She is regulated by the Solicitors Regulation Authority under SRA number 666606.

Jodie joined Pearcelegal in the summer of 2023, having qualified as a solicitor at a firm in London earlier that year. At Pearcelegal, she advises clients on Wills, Lasting Powers of Attorney, Probate and estate administration, and Trust matters. She has also contributed to the firm's legal content, including guidance on the probate process and considerations for making a will.

Client reviews rate Jodie 5.0 out of 5 across six reviews on Review Solicitors, Outside of work, Jodie enjoys experiencing new cuisines, cooking, and visiting National Trust sites.

Pearcelegal itself is authorised and regulated by the SRA under firm number 423097.

Last reviewed: August 2026