What Happens to Children’s Inheritance Under Intestacy?

What happens to children’s inheritance under the intestacy rules is a question that matters enormously to parents who have not yet made a will and to families dealing with the estate of someone who died intestate. The Administration of Estates Act 1925, as amended by the Inheritance and Trustees’ Powers Act 2014, gives children significant but carefully conditional inheritance rights when a parent dies without a will in England and Wales. Those rights depend on whether a spouse or civil partner also survives, on the age of the children, and on whether the children are biological, adopted, or merely treated as the deceased’s children without formal legal adoption.

The rules can produce outcomes that parents would never have chosen. Minor children do not receive their inheritance directly — it is held on a statutory trust until they reach 18. Children from a first relationship may find their inheritance significantly reduced when a parent remarries. And stepchildren, no matter how close the relationship, have no entitlement at all unless they were legally adopted. These outcomes are not mistakes in the law; they are the predictable consequence of a system designed for traditional family structures that increasingly does not reflect modern family life.

This guide explains in plain English how children’s inheritance works under the intestacy rules, how the statutory trust operates, and what families should consider to ensure that children are properly protected. For the complete picture of intestacy, see our intestacy rules guide. For how the estate administration process works, see our guide to estate administration.

Children’s Rights Under the Administration of Estates Act 1925

Section 46 of the Administration of Estates Act 1925 establishes the intestacy order. Children sit in second place in the hierarchy, immediately below a surviving spouse or civil partner. Where there is no surviving spouse or civil partner, the entire estate passes to the deceased’s children in equal shares. Where there is a surviving spouse or civil partner and children, the estate is divided: the surviving spouse takes personal chattels, a statutory legacy of £322,000 (2026 figure), and half the residuary estate; the children share the other half equally.

The term children in the Act means only biological children and legally adopted children. Stepchildren, foster children, and children who were treated as part of the family without formal adoption are excluded entirely from the intestacy rules. This is a critically important point for blended families: if the deceased was acting as a parent to stepchildren but had not formally adopted them, those children inherit nothing under intestacy, while the biological or adopted children of a previous relationship inherit as if the family were entirely straightforward.

The Statutory Trust: Why Children Under 18 Do Not Inherit Directly

Where a child who is entitled to inherit under the intestacy rules is under the age of 18 at the date of the parent’s death (or is under 18 and not yet married or in a civil partnership), their inheritance does not pass to them directly. Instead, it is held on a statutory trust by the administrator of the estate. The administrator — usually the surviving parent or another family member appointed by the Probate Registry — holds the funds and must manage them in the child’s best interests until the child turns 18.

This statutory trust gives the administrator discretion to apply income and capital from the child’s share for the child’s maintenance, education, and advancement. However, the administrator has no power to give the funds away or to invest in high-risk assets. If the administrator mismanages the trust fund, they can be personally liable to the child beneficiary for any loss. Where the only surviving parent is the administrator and is also a beneficiary under the intestacy rules, there is an inherent conflict of interest that can benefit from independent legal oversight. See our guidance on executor and administrator duties for more.

Adopted Children and Stepchildren: Different Rules

Legally adopted children have exactly the same inheritance rights under the intestacy rules as biological children. An adoption order severs the legal relationship between the child and their birth parents (so they can no longer inherit from a birth parent who dies intestate) and creates a full legal parent-child relationship with the adoptive parents. This is the case whether the adoption was a formal court adoption or a step-parent adoption under the Children Act.

Stepchildren who have not been legally adopted have no right to inherit under the intestacy rules, even if the deceased treated them as their own children in every practical sense. This harsh outcome frequently surprises families and creates bitterness in blended family situations. However, the law does offer some limited protection: a stepchild who was treated as a child of the family may be able to make a claim under the Inheritance (Provision for Family and Dependants) Act 1975 if they can show that the deceased assumed responsibility for their maintenance.

Children Born Outside Marriage

The Family Law Reform Act 1987 established that children born outside marriage have the same inheritance rights under the intestacy rules as children born to married parents. An illegitimate child (to use the old terminology, which the law no longer uses) is treated as a full child of their biological parents for intestacy purposes. The key requirement is that the biological parentage can be established — which for a father who was not married to the mother and is not named on the birth certificate may require paternity evidence. The GOV.UK page on who inherits if someone dies without a will confirms these rules apply equally to children born outside marriage.

Where paternity is disputed or unknown, an administrator should take legal advice before distributing the estate, to avoid the risk of a later claim by a child who was excluded from the distribution due to uncertainty about parentage.

What If a Child Predeceases the Parent?

Where a child of the deceased has predeceased the intestate parent but left their own children (grandchildren of the intestate), the grandchildren inherit by substitution — they take the share that their parent would have received, divided equally between them. This principle of inheritance by representation prevents the share from jumping to the next tier of relatives simply because one child died first.

For example, if the deceased had three children and one child predeceased them leaving two grandchildren, the estate is divided into three equal notional shares: two children take their shares directly, and the two grandchildren share their deceased parent’s one-third share equally, each receiving one-sixth of the estate. This rule applies at each generation — great-grandchildren can take by representation if both their parent and grandparent predeceased the intestate. For further information on how the estate is then distributed, see our guide to the probate process.

Written by Simon Jenkins, SRA 167489, Solicitor at Curtis Legal Limited (SRA 450129). For advice on children’s inheritance rights in an intestate estate, call freephone 0800 214 216 or request a same-day callback.