The legal framework
There is no forced heirship in England and Wales: you may leave your estate to whoever you choose. The corrective is the Inheritance (Provision for Family and Dependants) Act 1975, under which a spouse, former spouse, child, cohabitant of two years or dependant may ask the court for reasonable financial provision. Scotland is different: a surviving spouse and children have legal rights over the moveable estate that cannot be defeated by a will. Northern Ireland follows its own statute. Intestacy gives the spouse a statutory legacy plus a share of the residue.
The most damaging rule for couples is that marriage revokes an existing will in England and Wales unless the will says it was made in contemplation of that marriage. Many people remarry and die intestate without realising it.
The 1975 Act is the practical substitute for forced heirship, and it is not a formality: courts have made substantial awards to cohabitants and to adult children in need. The six-month deadline from the grant is strict, and it is missed often.
Scotland's legal rights surprise families who assume the English rules apply across the United Kingdom. A spouse and children can claim a fixed share of moveable property — bank accounts, investments, personal belongings — regardless of the will, though not of land.
Key points
| Statutes | Wills Act 1837; Administration of Estates Act 1925; Inheritance (Provision for Family and Dependants) Act 1975 |
|---|---|
| England and Wales | Testamentary freedom, subject to family provision claims |
| Scotland | Legal rights of spouse and children over moveable estate |
| Intestacy | Statutory legacy to the spouse, then a share of the residue with children |
| Cohabitants | Not heirs on intestacy; may claim under the 1975 Act after two years |
| Inheritance tax | Nil-rate band plus residence nil-rate band, spouse exemption, 40 % above |
In practice
- Find the will and check whether it was registered; apply for a grant of probate, or letters of administration if there is no will.
- Value the estate, including lifetime gifts made in the seven years before death.
- Report to HMRC and pay any inheritance tax before the grant is issued.
- Collect the assets, pay the debts, and only then distribute.
- Note the six-month deadline for a family provision claim from the date of the grant.
Cost and coverage
The probate application fee is a fixed sum, with no fee for very small estates. Solicitors typically charge 1 to 5 % of the estate for full administration. Inheritance tax is charged at 40 % above the nil-rate band, with a full exemption for transfers between spouses and civil partners and an additional band where a home passes to direct descendants.
Recent changes
The Law Commission's review of the law of wills has recommended modernising formalities, including electronic wills and a change to the rule that marriage revokes an earlier will.
Where to go
- HM Courts and Tribunals Service, for probate applications
- HMRC inheritance tax helpline and forms
- Certainty, the National Will Register
- Citizens Advice, for free initial guidance
- A solicitor specialising in probate, for contested or cross-border estates
Worth knowing
An unmarried partner is not an heir on intestacy, whatever the length of the relationship: without a will, the estate passes to blood relatives.
Frequently asked questions
Can I disinherit my children in England?
You can leave them out of your will, but an adult child may apply under the 1975 Act for reasonable financial provision, and the court can vary the estate.
Does my unmarried partner inherit?
Not on intestacy. After two years of living together they may claim under the 1975 Act, but that is litigation, not an entitlement.
What happens to my will if I remarry?
In England and Wales marriage revokes an earlier will unless it was expressly made in contemplation of that marriage.
What are legal rights in Scotland?
Fixed shares of the moveable estate for the surviving spouse and children, which a will cannot defeat.
Official sources and links
- GOV.UK — official portal for public services and rights
- legislation.gov.uk — the statute book as enacted and revised