What happens if someone passes without a will?

The short answer

If someone dies without a valid will, they die “intestate”. Their estate is then distributed according to fixed legal rules set out in the Administration Act 1969 — not according to what the person would have wanted. Someone must also apply for the authority to administer the estate, because there is no executor named in a will to do it.

Who administers the estate

With no executor, a family member (or another suitable person) applies to the High Court for letters of administration. There is a priority order for who may apply — a spouse or partner, then children, then other family members. Once appointed, the administrator has broadly the same duties as an executor: collect the assets, pay the debts, and distribute what remains according to the intestacy rules.

Who inherits — the general rules

The intestacy rules follow a fixed order. In general terms:

• if there is a spouse or partner and children, the partner receives the personal belongings, a fixed statutory amount, and a share of what remains, with the children sharing the rest;
• if there is a spouse or partner but no children, the partner generally receives the whole estate;
• if there are children but no spouse or partner, the children share the estate equally;
• if there is no partner or children, the estate passes to parents, then siblings, then grandparents, then aunts and uncles; and
• if no relatives can be found, the estate may pass to the Crown.

The exact shares can depend on the family situation — including how children are related to the partner — so the general descriptions above are not a substitute for advice about a specific estate.

What the rules do not consider

The intestacy rules are a blunt instrument. They do not take account of:

• the person’s wishes — even if everyone knows what they would have wanted;
• stepchildren, who are generally not automatically entitled under the intestacy rules;
• friends, carers or charities the person may have wanted to benefit;
• whether family members actually need the inheritance; or
• the relationships the person valued most.

A person in a de facto relationship may also be treated as a partner for intestacy purposes in some circumstances — but the rules are precise, and relationships that ended or were not clearly established can be disputed.

Claims are still possible

Even without a will, people who feel they were not adequately provided for — such as a spouse, partner, child or dependant — may still be able to bring a claim against the estate under the Family Protection Act 1955. The intestacy rules are a starting point, not necessarily the final word.

Why it matters

Dying intestate can mean:

• the estate going to people the person never intended to benefit;
• a partner or close friend receiving nothing;
• delays, because someone must apply for letters of administration and the process takes time;
• extra costs for the estate; and
• disputes between family members about who should inherit or who should administer.

What to do

If you have lost someone who died without a will, the practical steps are:

• find out whether any will actually exists — search the person’s papers, and check with their lawyer;
• get legal advice about who should apply for letters of administration;
• do not distribute assets before the estate’s debts and claims are understood; and
• keep records of everything done on behalf of the estate.

If you are reading this because you are planning your own affairs, the message is simpler: a will lets you choose. Without one, the law chooses for you.

The bottom line

Without a will, an estate is distributed by fixed rules that ignore wishes, relationships and needs, and the process takes longer and costs more. A will is the only way to make sure your estate goes to the people you choose. Our guide on whether you need a will and guide on deceased estates cover the surrounding details.