Deciding who inherits what
Deciding how the estate splits, and what happens when life does not follow the plan, is the part that takes the thought. The wording comes after. This page covers both for England and Wales, as general information rather than legal advice.
Decide the residue first, then the list
Gifts in a will come in a few kinds. Specific gifts are particular things you already own: a ring, a car, a named property. A fixed sum of money is different, a pecuniary legacy, paid out of the estate generally rather than out of any one asset. The residue is everything left after debts, funeral and administration costs, tax and those gifts have been paid.
The residue matters most, because it is usually the bulk of the estate and it absorbs everything you did not think to name. A will that lists gifts but never says who takes the residue is only half finished. Anything left undisposed of falls under the intestacy rules instead, even though you made a will. That is called a partial intestacy, and it is exactly what a residue clause is there to prevent.
So set the residue first, in shares that add up to the whole, then add specific gifts on top for the few items that genuinely need naming.
Percentages or fixed sums
A fixed sum does not move. A percentage does. If you leave a friend a set amount of cash and the rest to your children, that cash gift is paid in full whether the estate turns out to be large or small. In a small estate, fixed gifts can swallow most of it, and the people you meant to benefit most end up with the least.
Percentages of the residue hold their proportions relative to each other whatever the residue turns out to be worth on the day. Fixed sums are best kept for smaller, deliberate gifts where the exact amount is the point.
If the estate cannot cover every cash gift, then unless the will gives one of them priority, the cash legacies are reduced proportionately between themselves rather than paid in the order they appear in the will. Legacies are still paid ahead of the residue, so the residuary beneficiaries carry the shortfall first.
If a beneficiary dies before you
The general rule is that a gift to someone who dies before you fails. If it was a specific gift or a cash sum, what was left to them falls into the residue. If it was a share of the residue itself, there is nothing for it to fall into, so unless the will names a substitute, or gives that share to a class of people who survive you, or the exception below applies, it passes under the intestacy rules as a partial intestacy. That is exactly why substitutes and a long-stop beneficiary matter most on the residue.
There is an important exception. Under section 33 of the Wills Act 1837, if you leave something to your own child or any remoter descendant of yours, and they die before you leaving issue of their own alive at your death, the gift passes to that issue instead, unless the will says otherwise. In plain terms, the share follows that branch of the family rather than being shared out among the survivors.
It is not automatic for everyone. A gift to a sibling or a friend who dies before you simply lapses. A gift to a charity that has closed, merged or changed its name does not necessarily fail, because there are rules, known as cy-pres, for applying a failed charitable gift to a similar cause, but what then happens is out of your hands. Either way, naming a substitute in the will is what tells everyone where the share should go. Decide it branch by branch, because "equally between my three children, and if any of them dies before me their share to their own children" produces a very different result from "equally between such of my children as survive me".
Unequal shares between children
England and Wales has no forced heirship. You can leave your children unequal shares, or leave one out altogether, and the will is still valid.
Unequal is not the same as unchallengeable. Under the Inheritance (Provision for Family and Dependants) Act 1975, a child of any age can ask the court for reasonable financial provision out of your estate, however the will is written. So can a spouse or civil partner, a former spouse who has not remarried, a partner who lived in the same household as you as if married or in a civil partnership for the whole two years before your death, someone you treated as a child of the family, and anyone you were maintaining.
That is not a reason to avoid an unequal split. Families have good reasons: one child had help with a deposit, one is a carer, one has a disability. It is a reason to record why, in a letter kept with the will. The letter is not binding, but it tells the family and the court what you were thinking. If you can, say it out loud while you are alive: the reasons then come from you, rather than from a document read out after your death.
If there is no will: the intestacy rules
Die without a valid will in England and Wales and the intestacy rules decide instead. They are fixed, and they take no account of what you said or what anyone expected.
If you leave a husband, wife or civil partner and also children, the spouse or civil partner must survive you by 28 days, and then takes your personal possessions, a fixed statutory legacy, and half of whatever remains. The statutory legacy is a set sum fixed by order and reviewed periodically, so check the current figure on GOV.UK rather than relying on a number in an article. The other half is divided equally between your children and held on statutory trusts until they reach 18, or marry or form a civil partnership before then. Where a child of yours died before you, that child's own children take the share their parent would have taken. If there are no children, a spouse or civil partner who survives you by 28 days takes everything. If there is no spouse or civil partner, the whole estate goes to your children, and a child who died before you is represented by their own children.
With no spouse and no children, the estate passes down a fixed order: parents, then brothers and sisters of the whole blood, then brothers and sisters of the half blood, then grandparents, then uncles and aunts of the whole blood, then uncles and aunts of the half blood. In the brother and sister classes and the uncle and aunt classes, the children of someone who died before you take that person's share. Grandparents are different: those who survive you take in equal shares in their own right, and a grandparent who died before you is not represented by their own children. If nobody in that list survives you, the estate passes to the Crown as bona vacantia.
Two points catch people out. An unmarried partner inherits nothing under intestacy, however long you lived together and whatever you shared. Their main route is a court claim under the 1975 Act, which costs money and has no certain outcome. And stepchildren you never legally adopted inherit nothing either, though a stepchild you treated as a child of the family can bring a 1975 Act claim. An adopted child inherits as your child under the intestacy rules.
Before you fix the split
Worth working through once, on paper, before anyone starts drafting.
- List what you own in your sole name, what you own with someone else as joint tenants, and what you hold as tenants in common. Your sole name assets, plus your share of anything held as tenants in common, pass under your will. A joint tenancy does not.
- Set the residue first, in shares that total the whole estate.
- Keep specific gifts short. Every named item is one more thing that can be sold, lost or given away before you die.
- For each beneficiary, decide what happens if they die first: their share to their own children, or back into the residue.
- Name a long-stop beneficiary in case everyone named dies before you, so the will does not fall into partial intestacy.
- Check ages. Anything left to a child is normally held until they are 18 unless the will says otherwise. If you want 21 or 25, the will has to say so.
- Check that your pension and life policy nominations still match what the will says.
What a will cannot decide
This page is general information about how estates are divided in England and Wales, not legal advice on your own situation: we are will writers, not solicitors. It is the part worth reading twice, because a will only controls what passes through your estate, and several of the largest assets usually do not.
- Property you own as joint tenants passes automatically to the surviving owner. It is outside the will. If you want your share to go to your children, the joint tenancy has to be severed into a tenancy in common first, which is a separate step and worth taking advice on.
- Pension death benefits do not normally pass under your will. Where the scheme rules give the trustees or the provider discretion, they decide who receives the money, guided by the nomination form the scheme holds. Your will does not direct them. Check your scheme's rules, and check the nomination is current.
- A life policy written in trust pays the trust beneficiaries directly and does not form part of your estate for distribution under the will. Whether it also sits outside your estate for inheritance tax depends on how the trust was set up, so check that with whoever arranged the policy.
- Debts, funeral costs, administration costs and any inheritance tax are paid before anyone inherits. Shares are of what is left, not of what you own today.
- Use a solicitor if your estate is likely to face inheritance tax and you want it planned around, if you want to set up a trust, if you own a business, a farm or property abroad, if there is any doubt about mental capacity, or if you are deliberately leaving out a close family member who may bring a 1975 Act claim. In those cases you are paying for advice, not drafting.
- This is England and Wales only. Scotland and Northern Ireland have separate rules on inheritance, so do not rely on this page there.
Common questions
Does my partner inherit if we are not married?
No. Under the intestacy rules in England and Wales an unmarried partner inherits nothing, whatever the length of the relationship and whether or not you have children together. They may be able to apply to the court under the Inheritance (Provision for Family and Dependants) Act 1975, either as someone who lived with you as if married or in a civil partnership for the two years before your death, or as someone you were maintaining. Either way that is a claim rather than an entitlement, strict time limits apply from the grant of representation, and it costs money to bring, so anyone considering it should take advice from a solicitor early.
What if I leave someone an item I no longer own?
Usually the gift fails and that person receives nothing in its place. This is called ademption. There are narrow exceptions, but they are not something to rely on. If you sell the house, the car or the shares you named, assume the beneficiary gets nothing in place of them. If you want someone to receive value rather than a specific thing, leave them a share of the residue or a cash sum instead.
Can I leave my children different amounts?
Yes. England and Wales has no rule forcing an equal split. A child of any age can still bring a 1975 Act claim for reasonable financial provision, so record your reasons in a letter kept with the will and tell the family while you are alive if you can.
What happens if the will does not deal with the residue?
Anything the will does not dispose of passes under the intestacy rules, so part of your estate is distributed by statute even though you made a will. That is why the residue clause matters more than the list of gifts.
Start when you are ready
If you already know roughly who should get what, a will writer can take the detail over the phone and turn it into the wording of your will: £49 for a single will, normally £249, or £99 for two, normally £498. Offer ends 31 August. We are will writers, not solicitors, and we do not give legal advice.
Family & Estate Will £49, normally £249. Couples Will for you and your partner £99, normally £498. Offer ends 31 August.