It is easy to assume that if you die without making a Will, your family will simply decide how your estate should be divided.

Unfortunately, that isn’t how it works.

If you die without a valid Will, you are said to have died “intestate”. Instead of your wishes determining who receives your estate, the law applies a set of rules known as the intestacy rules.

And the result may be very different from what you would have wanted.

Who inherits if there is no Will?

The intestacy rules determine who is entitled to inherit and in what order.

For example, if you are married or in a civil partnership and have children, your spouse or civil partner does not necessarily inherit everything. Depending upon the value of your estate, part may pass to your children.

This can sometimes come as a surprise, particularly where a couple have always assumed that everything would simply pass to the survivor.

What about unmarried couples?

If you are unmarried, the position can be particularly significant.

There is a common misconception that a long-term partner or “common-law spouse” automatically has inheritance rights. Under the current law in England and Wales, this is not the case. No matter how long you have lived together, an unmarried partner does not automatically inherit under the intestacy rules.

There have been proposals for reform of the law relating to cohabiting couples, including giving some surviving unmarried partners greater rights where their partner dies without a Will. This reflects the fact that increasing numbers of couples live together without marrying or entering into a civil partnership.

However, proposals for reform should not be confused with the law as it currently stands. Unless and until the law changes, an unmarried partner can still be left with no automatic entitlement to their partner’s estate under the intestacy rules.

Even if the law does change in the future, relying on statutory rules is unlikely to provide the same certainty or flexibility as making a Will. Any new rules would need to define who qualifies, and the outcome prescribed by legislation may still be very different from what the couple themselves would have chosen.

This can create a particularly difficult situation if, for example, the family home is owned solely by the person who dies.

The safest approach remains a simple one: if you want your partner to inherit, make sure your Will says so.

What about children and other relatives?

If there is no surviving spouse or civil partner, the estate will generally pass down the family line according to a statutory order.

Children will normally inherit first. If there are no children, other relatives such as parents, siblings and, potentially, more distant family members may become entitled.

If no qualifying relatives can be found, the estate can ultimately pass to the Crown.

The important point is that you do not get to choose.

Someone you are particularly close to may receive nothing, while a relative with whom you have had little or no contact could potentially inherit.

Who deals with everything?

A Will also allows you to appoint executors – the people you trust to deal with your affairs after your death.

Without a Will, nobody has been appointed by you. Instead, someone entitled under the intestacy rules will usually need to apply for authority to administer your estate.

This can make matters more complicated at what is already likely to be a difficult time for the family.

It can also mean that the person dealing with your estate is not necessarily the person you would have chosen yourself.

What if you have young children?

A Will is about much more than money.

For parents of children under 18, it provides an opportunity to appoint guardians and make clear who you would want to look after your children if both parents were to die.

Without appropriate arrangements in place, decisions may have to be made without the benefit of clear instructions from you.

For parents of young children, this can be one of the most important reasons for putting a Will in place.

What about stepchildren?

Modern family arrangements can also produce unexpected results under the intestacy rules.

For example, a stepchild does not automatically inherit from a stepparent simply because they have been treated as part of the family for many years.

Similarly, you may want to provide differently for children, grandchildren, friends or other people depending upon their individual circumstances.

The intestacy rules cannot take account of those personal relationships or wishes. A properly drafted Will can.

A Will can do more than decide who inherits

Modern estate planning is not always simply about deciding who receives your assets.

A Will can also be used to provide additional protection.

Depending upon your circumstances, trusts within a Will might be considered to protect assets for a surviving spouse or partner, provide for younger beneficiaries, or give greater flexibility over how and when an inheritance ultimately passes to the next generation.

The intestacy rules cannot provide this type of tailored planning.

A Will puts you back in control

Making a Will does not have to mean creating something complicated.

For many people, the most important benefit is simply certainty.

It allows you to decide:

• who should inherit your estate;
• who should deal with your affairs;
• who you would like to look after young children;
• whether particular people or charities should receive gifts; and
• whether additional protection should be built into the way an inheritance is left.

Perhaps the simplest way of looking at it is this:

If you don’t make a Will, the law effectively makes one for you.

The question is whether the outcome produced by the intestacy rules is the same as the outcome you would have chosen yourself.

For many families, it won’t be.

If you do not currently have a Will, or if you are unsure whether an existing Will still reflects your circumstances and wishes, it may be worth taking the time to review your position.

A relatively straightforward piece of planning today can provide considerable certainty for the people you leave behind.

About Kevin Barrett

Kevin Barrett leads the estate planning service at Ad Valorem Estate Planning. A qualified accountant who ran his own practice until 2025, Kevin has many years’ experience helping individuals and families plan for the future.

He provides clear, practical advice on Wills, Lasting Powers of Attorney, trusts, inheritance tax and wider estate planning, with a focus on helping clients protect their wealth, their wishes and the people who matter most.

(E) enquiries@advaloremgroup.uk (T) 01908 219100 (W) advaloremgroup.uk