In an ideal world, everyone’s estate would be distributed according to their wishes. However, where someone dies without making a will, who gets what is determined by the intestacy provisions. The way in which the estate is distributed depends on the value of the estate and whether the deceased is married or in a civil partnership and whether they have children. The rules explained below apply in England and Wales; different rules apply in Scotland and Northern Ireland.

Jointly owned home

In England there are two ways in which property can be jointly owned – as joint tenants and as tenants in common. Where property is jointly owned as joint tenants, the owners together own the whole property. If one of them dies, the property automatically passes to the surviving joint tenant. However, the deceased’s share forms part of their estate for inheritance tax purposes.

By contrast, where property is owned as tenants in common, each person owns a defined share. Their share passes in accordance with their will or under the intestacy provisions rather than going to the other tenant(s) in common.

Spouse or civil partner but no children

A spouse or civil partner of a person who died intestate can inherit even if they were separated at the date of death (but not if they were divorced). However, unmarried partners cannot inherit.

If the deceased has a living spouse or civil partner, they inherit the whole estate.

To inherit, the surviving spouse or civil partner must survive the deceased by at least 28 days.

Spouse or civil partner and at least one child

Where the deceased has a living spouse or civil partner and at least one child, the estate is split between the spouse/civil partner and the children.

The spouse/civil partner inherits the deceased’s personal possessions, the first £322,000 of their estate and 50% of the remainder. The remainder is divided equally between the children. In the event that the deceased’s estate is valued at less than £322,000, the surviving spouse/civil partner inherits the whole estate.

Where children under the age of 18 inherit, their inheritance is held in trust until they reach the age of 18.

At least one child but no surviving spouse or civil partner

If there is no surviving spouse or civil partner, but the deceased has children, their estate is divided equally between the children.

Grandchildren

Where a child of the deceased has died before them, if they have children, they will inherit the child’s share equally.

No spouse or civil partner or children

If the deceased does not have a spouse/civil partner or children, other relatives inherit in the following order:

· parents;

· siblings;

· grandparents; then

· uncles and aunts.

So, if the deceased’s mother was alive and the deceased has a surviving brother and two surviving aunts, the deceased’s mother would inherit the whole estate.

No surviving relatives

The estate goes to the Crown. This is called bona vacantia.

Changing the allocation

The intestacy rules may not give the best outcome and may also result in inheritance tax being payable unnecessarily. For example, where under the intestacy rules relatives other than the spouse or civil partner inherit more than the deceased’s available nil rate bands, inheritance tax will be payable, whereas if the whole estate, or at least that in excess of the available nil rate bands, was left to the spouse or civil partner, no inheritance tax would be due.

This need not be a problem. As long as everyone who is over the age of 18 agrees, the allocation can be changed within two years of death by making a deed of variation. This effectively writes a will from the grave.