What is a Child Entitled to When a Parent Dies Without a Will?

A parent dying without a will can make an already difficult time even more challenging for their children. It can slow down the process of dealing with their estate and make it more complicated, as well as potentially meaning the estate is not divided in the way the deceased’s loved ones may have expected.

If you have a parent who has passed away without a will, or you are concerned that a living parent does not have a will in place, it is a good idea to understand what this means for your inheritance rights as their child. You can then approach the situation with a more realistic picture of what you are entitled to and what steps you can take if you are unhappy with your expected inheritance.

In this blog, we cover the ‘intestacy rules’ that are applied if a person dies without a will, how those rules apply when the deceased has children and what children can do if they wish to challenge the division of an estate under the intestacy rules.

Please get in touch if you would like to speak to a member of our team about how we can help with intestacy and estate administration.

What are intestacy rules?

If a person dies without a will, they are referred to as having ‘died intestate’. Their estate will then be dealt with under strict rules of inheritance set out by the government, which specify exactly who is entitled to inherit from the estate. These rules are known as the ‘intestacy rules’.

What happens if a parent dies without a will under the intestacy rules?

If a parent dies without a will, the question of who inherits from their estate would depend on two key factors – the size of their estate and what living relatives they had. The most important determiner of children’s inheritance rights in intestacy cases is whether their parent had a living spouse or civil partner.

Below, we cover what a child is entitled to when a parent dies without a will, depending on whether or not that parent is survived by a spouse or civil partner. You can also use the government’s intestacy tool to see who might inherit, based on different specific circumstances.

Please note: the rules covered below relate to situations where the deceased died on or after 26 July 2023. Slightly different rules apply to deaths before this date, so please discuss this with our team if you need clarification on how the rules apply to your circumstances.

Where there is a living spouse or civil partner

In England and Wales, a living spouse or civil partner of the deceased has the first claim on their estate. They would normally be entitled to the first £322,000 of the assets in the estate, half of the rest of the estate and all of the deceased’s personal possessions.

Any living children of the deceased would then be entitled to the other half of the estate over the £322,000 threshold. This would be shared equally amongst the children.

So, for example, if the estate was worth £522,000, and the deceased has a living spouse and two living children, the estate would be divided as follows:

• The first £322,000 to the spouse, leaving £200,000 to be divided amongst the spouse and the children.
• Half of the remaining estate assets (i.e. £100,000) would go to the spouse.
• This would give the spouse a total inheritance of £422,000 and leave £100,000 to be divided equally between the two children.
• The children would each receive £50,000.

Where there is no living spouse or civil partner

If there is no living spouse or civil partner, then the entire estate would be divided equally amongst the deceased’s children.

It is important to note that unmarried partners have no automatic right of inheritance, so they do not get anything under the intestacy rules. However, they can potentially apply for provision from the estate under the Inheritance (Provision for Family and Dependants) Act 1975 (covered in more detail below).

Please also note, if there was a spouse or civil partner who died more than 28 days after the deceased, then their inheritance rights would still apply. This means the spouse or civil partner’s share of the deceased’s estate would normally be added to the spouse or civil partner’s own estate, rather than it passing to the deceased’s children.

What happens if one of the parents’ children has predeceased them?

If the parent had a child who died before them, that child’s own children could claim their parent’s share of the estate.

For example, Ann has two children Barry and Claire. Claire has two children of her own, David and Emily. Claire dies before Ann, so if Ann dies without leaving a will, David and Emily are each entitled to half of their mother Claire’s share of the estate.

Can children challenge the intestacy rules?

What happens when a parent dies without a will often comes as a surprise to their children, meaning it is not uncommon for people to be upset about what they are entitled to under the intestacy rules. While the rules are clear, this does not mean that a person cannot potentially attempt to claim a greater share of their parent’s assets than those rules specify.

Anyone who is unhappy with their provision from a deceased person’s estate can potentially make a claim against the estate under the Inheritance (Provision for Family and Dependants) Act 1975, commonly referred to as ‘the Inheritance Act’.

You may be able to claim ‘reasonable financial provision’ from the estate if you were normally financially dependent on the deceased immediately prior to their death and your entitlement under the intestacy rules would not cover your needs.

Whether you will be able to make such a claim and how likely it is to succeed will entirely depend on the circumstances, so it is important to get expert advice as soon as possible.

If you need advice on Inheritance Act claims, our team are on hand to assist you.

Can you claim under intestacy rules if there is a will you think is invalid?

A will has to meet strict legal requirements to be valid. If those requirements were not met, then it is possible that the will could be set aside and the estate be dealt with under the intestacy rules instead. Challenging a will in this way can be very complicated and may quickly become highly contentious, so it is essential to be well-advised and ready for the possibility of conflict.

At Longmores, we can assist with challenging a will, if you believe it is invalid and you would prefer the estate to be dealt with under the intestacy rules, or a previous will, if one exists.

Get expert advice on intestacy and estate disputes

Longmores’ Private Client team are highly experienced in dealing with intestate estates, including where there are disputes involving children’s inheritance rights. We can provide clear advice on your legal position and work proactively to find a positive outcome, usually without the need for drawn out and contentious court proceedings.

If you are a parent who is worried about dying without a will, we can also assist with making a well-planned, legally sound will, to avoid this scenario.

To find out how we can help with an intestate estate, please contact us and we will be happy to discuss your requirements.