Dying without a will: intestacy and IHT

Q: How might this look in practice?

Illustration only. Daniel dies intestate in 2026, survived by his wife and two adult children. His chattels are worth £20,000 and the rest of his estate £722,000. His wife takes the chattels, £322,000 and half of the remaining £400,000, so £542,000 is spouse exempt. The children share £200,000, which sits within the £325,000 nil rate band, so there is no tax. The unused £125,000, about 38% of the band, can pass to his wife's estate. Had Daniel been a widower with the same estate including a £350,000 home, his children would inherit everything, the home would be closely inherited, and the estate would have £325,000 plus a £175,000 residence nil rate band, plus any bands transferable from his late wife. If HMRC opens a check into your return, tax investigation insurance pays your accountant's fees. Solar Protect cover pays up to £100,000 with no excess; it never pays tax, interest or penalties. Read how our cover works or get a quote.

When someone in England or Wales dies without a valid will, section 46 of the Administration of Estates Act 1925 decides who inherits. A surviving spouse or civil partner takes everything if there are no children or other descendants; otherwise they take the personal chattels, a statutory legacy of £322,000 and half the rest, with the other half going to the descendants. Inheritance tax then follows that distribution: the spouse’s share is exempt, the descendants’ share uses the nil rate bands, and anyone the rules leave out, such as an unmarried partner or a stepchild, receives nothing unless the family varies the result or a court makes an order.

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Who inherits when there is no will?

HMRC summarises the rules at IHTM12111 and IHTM12125. In England and Wales the order is:

Survivors	Who takes the estate
Spouse or civil partner, no descendants	Spouse or civil partner takes everything
Spouse or civil partner and descendants	Spouse: personal chattels, £322,000 and half the residue. Descendants: the other half
Descendants, no spouse	Children equally, with a predeceased child’s share going to that child’s own children
No spouse or descendants	Parents, then brothers and sisters of the whole blood, then the half blood, then grandparents, then uncles and aunts of the whole blood, then the half blood
No relatives in those classes	The Crown, the Duchy of Lancaster or the Duke of Cornwall as bona vacantia

A spouse or civil partner must survive by 28 days to inherit (section 46(2A)). Divorced spouses take nothing, and a judicial separation means the spouse is treated as having died first (IHTM12123). Under section 47, descendants inherit on reaching 18 or marrying or forming a civil partnership before then; until that point their share is held on what the Act calls the statutory trusts. Adopted children and children of unmarried parents inherit, but HMRC notes at IHTM12124 that stepchildren are not issue unless adopted. Where a will deals with only part of the estate, the rest passes under these rules as a partial intestacy.

How much does the surviving spouse or civil partner receive?

The statutory legacy, which the Act calls the fixed net sum, is £322,000 for deaths from 26 July 2023, set by the Administration of Estates Act 1925 (Fixed Net Sum) Order 2023. It was £270,000 from 6 February 2020 to 25 July 2023 and £250,000 from 1 October 2014 to 5 February 2020 (IHTM12122). Interest runs on it from death at the Bank of England rate (section 46(1A)), but HMRC says the interest is ignored when calculating the spouse exemption.

For deaths from 1 October 2014 the spouse takes half the residue absolutely. Before that date it was a life interest, which could be exchanged for a capital sum (IHTM12121). The spouse also has a right to take the home they lived in as part of their entitlement (IHTM12123).

Section 18 of the Inheritance Tax Act 1984 exempts everything passing to the spouse or civil partner, but section 18(2) caps it where the deceased was a long term UK resident and the spouse was not. Our page on the non UK spouse exemption explains the limit.

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How does intestacy affect the nil rate band?

Where everything goes to the spouse, no nil rate band is used, and GOV.UK confirms the unused threshold can be added to the survivor’s threshold on their death (see transferring the unused nil rate band). Where there are descendants, their half share above the statutory legacy is chargeable and uses the £325,000 nil rate band first. On a moderate estate this often means no tax on the first death and only part of the band transferred.

Where the Crown takes as bona vacantia, HMRC explains at IHTM12126 that for deaths from 26 July 1984 there is no tax on that property, because the Crown is immune from taxation, although it still counts in valuing the estate as a whole.

Does the residence nil rate band apply on intestacy?

Yes. Section 8J(2) says a person inherits property if there is a disposition of it to them “whether effected by will, under the law relating to intestacy or otherwise”. HMRC confirms at IHTM46033 that the home does not need to be a specific gift and can pass as part of residue.

Two features of intestacy need care. First, a child’s share held on the statutory trusts until 18 is a trust for a bereaved minor under section 71A (IHTM42815), and section 8J(4)(b) treats property in such a trust as inherited by that child, so the relief is not lost because the children are young. Second, where the home falls into residue shared between the spouse and the descendants, only the descendants’ share of the home is closely inherited. IHTM46033 adds that if the personal representatives later appropriate the whole home to a descendant using their administrative powers, that does not increase the closely inherited share.

Stepchildren show a mismatch. Section 8K(3) treats a stepchild as a child for the residence nil rate band, but the intestacy rules give stepchildren nothing, so a home that passes to the deceased’s parents or siblings instead earns no relief. If the spouse takes everything, any unused residence nil rate band can be carried to the survivor (IHTM46040).

What happens to an unmarried partner?

Section 46 gives a cohabiting partner no share. Their remedy is an application under the Inheritance (Provision for Family and Dependants) Act 1975: section 1(1A) allows a claim by someone who lived with the deceased in the same household as if married or civil partners for the two years before death. Section 4 sets a time limit of six months from the first grant, unless the court allows a later claim.

An order under section 2 of that Act is treated for inheritance tax as if it had applied from death (IHTA 1984 section 146, IHTM35202). Because the partner is not a spouse, property they receive is still chargeable, and HMRC takes the order into account when deciding whether a home is closely inherited (IHTM46033).

Are the rules different in Scotland and Northern Ireland?

Yes. Scotland applies the Succession (Scotland) Act 1964, with prior rights and legal rights. HMRC’s guidance at IHTM12151 notes that for Scottish deaths a spouse need only survive, with no 28 day period, and that from 1 May 2024 a spouse or civil partner takes the whole estate where there are no descendants. Northern Ireland has its own rules (IHTM12101). The inheritance tax principles above are the same throughout the UK; only the distribution differs.

Can the family change the result?

Section 142 allows the people who benefit under an intestacy to vary the dispositions within two years of death. If the instrument contains the required statement, inheritance tax applies as if the deceased had made the gift. The personal representatives must join the statement if extra tax results. This can redirect part of a share to an unmarried partner, a stepchild or a charity, or move the home to descendants to secure the residence nil rate band. See our page on deeds of variation.

How might this look in practice?

Illustration only. Daniel dies intestate in 2026, survived by his wife and two adult children. His chattels are worth £20,000 and the rest of his estate £722,000. His wife takes the chattels, £322,000 and half of the remaining £400,000, so £542,000 is spouse exempt. The children share £200,000, which sits within the £325,000 nil rate band, so there is no tax. The unused £125,000, about 38% of the band, can pass to his wife’s estate.

Had Daniel been a widower with the same estate including a £350,000 home, his children would inherit everything, the home would be closely inherited, and the estate would have £325,000 plus a £175,000 residence nil rate band, plus any bands transferable from his late wife.

If HMRC opens a check into your return, tax investigation insurance pays your accountant’s fees. Solar Protect cover pays up to £100,000 with no excess; it never pays tax, interest or penalties. Read how our cover works or get a quote.

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Reviewed by Christine Anderson, Broker, Solar Protect. Last reviewed 8 October 2026. Part of Accountapedia, the Solar Protect guide to UK tax and accounting. This page is general information, not personalised advice.