Dying without a will: what actually happens

Dying without a valid will is called dying intestate, and it means the law decides who inherits according to a fixed order of relatives.

That order was written to produce a defensible default across an entire population. It was not written for your family, and the results are frequently not what anyone expected.

Not legal advice, and the rules differ substantially by jurisdiction. What follows are the patterns that recur.

The general shape of intestacy rules

Most systems work through a hierarchy: spouse or civil partner, then children and their descendants, then parents, then siblings, then more distant relatives, with the estate passing to the state if nobody qualifies.

The proportions differ enormously. Some systems give the entire estate to a surviving spouse; others split it between spouse and children in defined shares, sometimes with a threshold amount to the spouse first.

The results that surprise people

Unmarried partners frequently inherit nothing. This is the single largest problem and it affects a great many people.

In many jurisdictions, a partner who is not married or in a registered civil partnership has no automatic entitlement under intestacy rules, regardless of how long the relationship lasted or whether there are children.

Some jurisdictions have provisions for cohabitants, sometimes requiring a minimum period of cohabitation, and many do not. Some allow a claim to be made to a court, which is expensive, slow and uncertain.

The widespread belief in a "common law marriage" conferring rights is, in most places, simply false.

If you are in a long-term unmarried relationship and own anything, this is the most urgent reason to make a will.

Stepchildren usually inherit nothing. Intestacy rules generally operate on legal relationships. A stepchild who was raised by you from infancy but never legally adopted typically has no entitlement, while a biological child you have not seen in thirty years does.

An estranged spouse may inherit. Separation without divorce generally does not affect intestacy entitlements in most systems. A spouse you have not lived with for a decade may inherit substantially.

Children may inherit at eighteen. Where children inherit, funds are typically held until majority and then released outright. Many parents would prefer a later age or staged distribution, which requires a will and usually a trust.

The surviving spouse may not get the house. Where the estate is split between spouse and children, and the house is the main asset, the practical result can be pressure to sell the family home to pay the children's shares.

Distant relatives may inherit. Where there is no close family, estates can pass to relatives the deceased barely knew.

The practical problems beyond who inherits

Nobody is appointed to administer the estate. Without a will there is no named executor, and someone must apply to be appointed. The process is generally slower and more complicated, and the order of who may apply is prescribed.

Where family members disagree about who should administer, this becomes a dispute at the outset.

No guardians are named for children. Where both parents die, a court decides who cares for the children, taking into account the child's welfare and any expressed wishes — but with no clear statement from the parents, the decision is made among competing family claims.

For parents of young children, this is generally the most compelling reason to make a will.

Delay and cost. Intestate estates typically take longer and cost more to administer, and the additional cost comes out of the estate.

Tax. In jurisdictions with inheritance or estate taxes, a will can be structured to use available reliefs. Intestacy takes no account of tax planning.

No provision for anyone outside the family. Friends, charities, carers, and anyone else receives nothing.

What is not affected

Assets passing outside the estate — jointly held property with survivorship, and accounts with named beneficiaries — generally pass as they would have anyway.

Which means someone with a jointly owned house and a nominated pension may pass most of their wealth to the intended person regardless. That is worth knowing and it is not a plan.

The partial-will problem

A will can be partially ineffective — if it fails to deal with all the assets, if a beneficiary has died, or if a provision is invalid.

The undisposed portion then passes under intestacy rules, producing a hybrid result that is frequently the worst of both.

This is one of the arguments for professional drafting: home-made wills produce partial intestacy with some regularity, usually through a residuary clause that is missing or badly worded.

What to do

Make a will. It is not expensive relative to the cost of not having one, and for most people it is a straightforward matter.

If you are unmarried and living with a partner, if you have stepchildren, if you are separated but not divorced, or if you have children under eighteen, treat it as urgent rather than as something to get around to.

This is general information, not legal advice. Intestacy rules differ substantially between countries and states. Consult a qualified solicitor, attorney or notary where you live.