Dying Without a Will in a Care Home: Deprivation of Assets Risk

What happens when a care home resident dies without a will?

1The standard intestacy rules apply when a care home resident dies without a will — the estate passes to spouse, children, parents, siblings, or the Crown in that priority order.
2The local authority may investigate whether assets were transferred before the person entered care to avoid care home fees — known as deprivation of assets.
3If the council funded care home fees, they may have a legal charge on the estate (a deferred payment agreement) that must be repaid before the estate is distributed.
4The care home itself must be notified promptly — fees are typically owed up to the date of death, and any pre-paid fees or deposits should be refunded.
5Mental capacity at the time of any gifts or asset transfers is a key question — gifts made without capacity may be challengeable.

When a care home resident dies without a will, the intestacy rules apply in the usual way. However, care home residency creates several additional complications that families need to understand: the potential for local authority scrutiny of asset transfers, deferred payment agreements that must be repaid, and the sensitive question of any gifts or property transfers made before or during the period in care.

Who Is Legally Entitled to Inherit?

The intestacy rules apply to a care home resident's estate just as they would to any other person. Under the Administration of Estates Act 1925:

Surviving spouse or civil partner has first priority
Children (biological and adopted) — and grandchildren by representation — if no surviving spouse
Parents if no spouse and no children
Siblings (and so on down the hierarchy) if no parents
Crown if no eligible relatives

For the full intestacy overview, see our main intestacy guide.

Deprivation of Assets: What Is It and Why Does It Matter?

Deprivation of assets is when a person transfers money, property, or other assets — with the intention of reducing what is available for a local authority means test for care funding. Local authorities have the power to “look back” at transfers made before and during care home residency and, if satisfied that there was a deliberate intent to avoid care fees, to treat those assets as if they still belonged to the person.

This is relevant to the estate administration because:

If a person transferred assets to family members before going into care, the local authority may have a claim against those family members for unpaid care fees
The administrator of the estate has a duty to be honest with the local authority about any such transfers
If the estate owes money to the council, that debt must be paid before the estate is distributed to beneficiaries

Importantly, not every gift made before entering care is deprivation of assets. The local authority must show that avoiding care fees was a significant motivation. Normal gifts (birthdays, Christmas, etc.) or gifts made many years before any prospect of care are less likely to be treated as deprivation.

However, large gifts made shortly before entering care — or during care — are much more likely to attract scrutiny. Families should seek legal advice if they are concerned.

Deferred Payment Agreements and Local Authority Charges

If the local authority funded (or part-funded) care home fees, they may have entered into a deferred payment agreement — a legal charge on the person's property that means the council is repaid when the property is sold. This is a debt of the estate.

The administrator must identify any such agreement and ensure it is repaid from the estate before the net estate is distributed to beneficiaries. Ignoring a deferred payment agreement would leave the administrator personally liable.

The local authority should be notified of the death promptly. They will advise on the outstanding balance and the process for repayment.

Who Has the Right to Apply for Letters of Administration?

The usual priority order applies. The surviving spouse has first right, then children (if aged 18 or over), then parents, and so on. See our guide to applying for letters of administration.

In cases where the person lacked mental capacity for a significant period before death — which is common for care home residents — it may be relevant to check whether any lasting power of attorney was registered. An LPA attorney's powers end on death, so letters of administration are still required, but the LPA records can help identify assets and provide useful background.

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What Happens to the Family Home?

Many people in care homes own or owned property. If the property was sold to fund care fees, the proceeds (less fees paid) remain in the estate. If the property was not sold — for instance, if a spouse was still living there — it may be subject to a deferred payment agreement charge.

If a deferred payment agreement exists, the property cannot be sold without repaying the council first. The administrator must deal with this as a priority debt of the estate.

Mental Capacity and Gifts: A Key Consideration

Care home residents often have reduced or absent mental capacity. If any gifts were made by or on behalf of the person during a period of reduced capacity — including by an attorney under a lasting power of attorney — those gifts may be challengeable.

An attorney under an LPA does not generally have the power to make substantial gifts from the donor's estate (unless the LPA expressly grants this). Gifts exceeding the attorney's powers are voidable and may need to be repaid to the estate.

If you suspect gifts were made without capacity or outside an attorney's powers, seek legal advice promptly.

Immediate Steps When a Care Home Resident Dies

Notify the care home immediately. They will advise on outstanding fees and the process for collecting personal belongings.
Register the death within 5 days. See our guide to what to do when someone dies.
Notify the local authority if they were contributing to care costs, to stop fees and discuss any deferred payment agreement.
Notify DWP and other benefit providers — Attendance Allowance, Pension Credit, and other means-tested benefits cease on death. See our guide on notifying DWP about a death.
Value the estate using our estate administration checklist.
Apply for letters of administration — use our step-by-step guide.
Seek legal advice if there are concerns about deprivation of assets, deferred payment agreements, or gifts made without capacity.

How to Avoid This in Future: Making a Will

Making a will is important for everyone, but particularly for people who are approaching the age where care may become necessary. A will combined with a lasting power of attorney — for both property and finances, and for health and welfare — provides maximum protection.

See our guide to writing a will in the UK in 2026.

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