Applying for probate Intestacy rules

child and mother

When there is no will, a spouse shares the estate with the deceased's children

Understand the steps you'll need to take when someone has died without a will, or 'intestate'.

When someone dies intestate, the estate is handled by an administrator (normally the next of kin or a close relative), who is appointed by the Probate Registry after applying for a grant of representation. 

The application process is similar to that of an executor. You must first complete a probate application form and the relevant inheritance tax form. After this you submit your application and swear an oath.

In Scotland, a relative who assumes this role is called the ‘executor-dative’.

The deceased's estate is distributed in line with formal intestacy rules, which means that the surviving spouse and/or children will receive a specific share. If there is no spouse or children, the parents or siblings of the deceased inherit (see the distribution rules below). 

Find out more: Which? Legal can advise on acting as an administrator where the deceased has died without a valid will.

Intestacy distribution

The intestacy rules determine how the estate of someone who dies without a will is distributed.

In Scotland, a surviving spouse or civil partner is entitled to 'prior rights' (the family home - assuming it is in Scotland, they were resident in it at the time of death and it is worth less than £473,000) and a share of the 'legal rights', which are shared with any surviving children. 

The following cases show how the intestacy rules apply in England and Wales. The outcome is different depending on whether the deceased had children and whether they were married. In some cases, where no relative can be found, the estate of someone who dies intestate will ultimately pass to the crown.

1Deceased is married or in a civil partnership and has children:

  • Their spouse will receive everything in the estate, including all personal possessions, up to the first £250,000.
  • Anything above that amount is divided in two, with half going the children (at age 18) and half to the spouse.

2Deceased is married or in a civil partnership but has no children:

  • Their spouse will receive all personal possessions and the proceeds of the estate.

3Deceased is unmarried and has children:

  • Their children will receive the proceeds of the entire estate when they turn 18.

4Deceased is unmarried with no children:

  • The entire estate will go to the following relatives, in this order: 
  1. Their parents;
  2. If parents are deceased, to their brothers and sisters;
  3. If they have no siblings or surviving parents, to their grandparents;
  4. If grandparents are also deceased, to uncles and aunts;
  5. If they have no living relatives, the estate will go to the crown.

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Last updated:

June 2016

Updated by:

Ian Robinson

Which? Limited (registered in England and Wales number 00677665) is an Introducer Appointed Representative of Which? Financial Services Limited (registered in England and Wales number 07239342). Which? Financial Services Limited is authorised and regulated by the Financial Conduct Authority (FRN 527029). Which? Mortgage Advisers and Which? Money Compare are trading names of Which? Financial Services Limited. Registered office: 2 Marylebone Road, London NW1 4DF.