7 May 2019

Intestacy – who will inherit?

Help! My partner whom I have been living with for over 15 years has died suddenly and he didn’t make a Will? We talked about making a Will so many times but we just never got around to doing it. Unfortunately, his children and I don’t see eye to eye. I’m really worried. Where do I stand? Can I inherit?

what happens if someone dies without a valid Will in place?

If someone dies without making a will in place, the law determines who is entitled to a share of that person’s money, property and possessions (this is the called the rules of Intestacy). This means that money, property and possessions may not necessarily pass to the family members that you might assume they would pass to.

who will inherit?

Only married persons or civil partners and other close relatives can inherit if a person has died without making a will. A surviving partner who wasn’t married or in a civil partnership with the deceased has no automatic right to inherit. Cohabiting partners (sometimes wrongly called ‘common-law’ partners) who were neither married nor in a civil partnership can’t inherit under the rules of intestacy either. Therefore, if you were not married or in a civil partnership with your partner when they died and they did not make a will then his money, property and possessions, will pass in accordance with the rules of Intestacy to their own biological or adopted children, if they have any. If there are no children, then the estate will pass to other family members and not to you as an unmarried/cohabiting partner, even if you have been in a relationship with the deceased for many years. This could leave you without a place to live and without any money or future income.

your home.

If you and your partner lived in a house together, it is important that you establish who legally owns it so that it can be established as to whether the house, or any part of it, comes within the rules of Intestacy. Often, but not always, couples may own their house jointly so that both names are on the deeds. However, what a lot of people do not know is that there are two different ways of jointly owning a home. These are: “beneficial joint tenancies” and “tenancies in common”. If a couple were beneficial joint tenants at the time of the death, when the first partner dies, the surviving partner will automatically inherit the other’s share of the property. However, if a couple are tenants in common, the surviving partner does not automatically inherit the other person’s share and the deceased’s share will pass to other relatives. Unfortunately, the deeds to your home won’t have the words “beneficial joint tenancies” or “tenancies in common”, but if you can show us a copy of the deeds we will be able to advise you on how you own the property and what to do next.

If you’re not married or in a civil partnership and you don’t own the family home, you may still have some rights to it if you’ve made some form of contribution which could give you rights to live in the home and a share of its value if sold. This can be a very complex area of law and you’ll need the help of a solicitor if you think it applies to your situation.

bank accounts.

Couples may also have joint bank or building society accounts. If one dies, the other partner will automatically inherit the whole of this money, whether or not you were married or in a civil partnership when your partner died. Property and money that the surviving partner automatically inherits does not count as part of the estate of the person who has died when it is being valued for the rules of Intestacy.

is there any other way that I can inherit part of the estate?

It is possible to rearrange the way property is shared out when someone dies without leaving a will, provided this is done within two years of the death. This is called making a deed of variation and all the people who would inherit under the rules of Intestacy must agree.

If they agree, the property can be shared out in a different way so that people who do not inherit under the intestacy rules can still get some of the estate. Or they could agree that the amount that people get is different to the amount they would get under the rules of Intestacy. If you think that the way the estate is shared out should be rearranged, you will need legal advice.

As you say that you and your partner’s children don’t see eye to eye, they may not willingly agree to change the way that your partner’s estate is shared out. However, even if you can’t inherit under the rules of intestacy and even if a deed of variation isn’t possible, you may still be able to apply to the court on the basis that your partner did not provide you with adequate financial provision when he died. In your situation, as you were living with the person who has died but you were not married to them, you would not inherit under the rules of intestacy but you can ask the court whether any financial help could be made to you from your partner’s assets. There are certain rules and criteria that have to be met before you can apply to the court and the application must be made within a certain time limit, but the court may order that you receive regular payments from the estate, a lump sum payment from the estate, or property to be transferred from the estate to you. If you want to apply to the court for financial help, you will need legal advice. This can be a costly, time consuming and stressful time, especially as you will be bereaved and more so if there is a conflict amongst the family members who are entitled to the estate under the rules of Intestacy.

make a will.

We know it’s not easy to think about what will happen when you die, about those you are leaving behind and about what will happen to your money and property but it’s so important to take that first step in making a Will. Pick up the phone, or drop us an email. We are here to help. Don’t just talk about it or have it on your list of New Year’s resolutions, year after year as the consequences of not having a will can be devastating for your loved ones. Whether you are married or cohabiting, making a Will is the only way that you can provide for your loved ones in the way you want when you die. Having a Will means your loved ones do not have to deal with any further stress and it creates security and certainty as to who will benefit from your estate.

If you would like any advice on the issues raised above or if you would like to make a Will, please get in touch with one of our experienced Wills and Probate lawyers at Howell-Jones and we will be happy to advise and guide you through the process of preparing your Will.

This information is necessarily brief and is not intended to be an exhaustive statement of the Law. It is essential that professional advice is sought before any decision is taken.

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