Litigation Executive Hayley Gaffney outlines some of the issues affecting those who have lost their partner and are unsure whether or not they have a right to their estate.
At Coodes we receive a significant number of enquiries from unmarried individuals who have sadly lost their long-term partner who left no will. They are, understandably, concerned about losing their home, not being able to pay the bills and not knowing what, if anything, they are entitled to from their partner’s estate.
Can I deal with my partner’s estate?
Somebody who administers an estate is called an executor or executrix. An executor’s power to deal with the estate comes from the will.
If somebody dies intestate (without a will), the people entitled to administer their estate are called personal representatives or administrators. A personal representative’s power to administer an intestate estate comes from a grant of letters of administration.
The list of people entitled to become a personal representative for an intestate estate are set out in the Non-Contentious Probate Rules 1987. Broadly, these are, in order of priority:
- Adult child / children of pre-deceased adult child
- Parents of the deceased
- Whole blood siblings
- Half blood siblings
- Grandparents of the deceased
- Uncles and aunts
- Half blood uncles and aunts
Nobody in the same category is more entitled than anyone else. For instance, if there are three children, they are each equally entitled to be a personal representative irrespective of things like age or sex. Any one of them is entitled to apply for a grant without giving notice to the others.
Unfortunately, with unmarried couples, the surviving partner has, at present, no entitlement to become a personal representative and therefore no right to administer the estate.
Am I entitled to anything from my partner’s estate?
Under the rules of intestacy, the inheritance entitlement follows the same order of priority as that for becoming a personal representative. The actual entitlement is complex and the rules are extensive. The order of entitlement does not include an unmarried partner. Therefore, with an intestate estate, an unmarried partner is not presently entitled to anything.
We owned the property jointly. Does it automatically become mine?
Property can be owned jointly in two different ways: as joint tenants or tenants in common. The way in which you owned the property together is relevant when administering an estate.
If the property is owned as joint tenants, the partner’s share would, on their death, automatically pass to the surviving co-owner by survivorship. The property would not pass to the deceased’s beneficiaries in their estate, as owning a property as joint tenants means the co-owners do not own a distinct share of the property – they each own the whole.
If the property was held as tenants in common, whatever share belonged to the deceased partner would then become part of their estate. It would then need to be administered by their personal representatives to the relevant beneficiaries
Am I entitled to bring a claim for anything from their estate?
The Inheritance (Provision for Family and Dependants) Act 1975 entitles a person who had been living in the same household as the deceased as if they were married or in a civil partnership for the entire two years immediately before their death to make an application to the Court for ‘reasonable financial provision’ from the estate.
‘Reasonable financial provision’ is defined as being such financial provision as it would be reasonable in all the circumstances of the case for the applicant to receive for their maintenance. There are a number of factors which the court will take into consideration and our expert team at Coodes can advise on these and assist with the claim.
It is important to note that there is a strict time limit of six months from the date of a grant to bring a claim under the Inheritance Act.
What about our children?
Under the rules of intestacy, in the absence of a spouse, the deceased’s children would be entitled to inherit the entirety of the estate in equal shares. It would then be held on trust for them until they reach the age of 18. If the deceased was married at the time of death, their children would still be entitled to a share of the estate but this would be significantly less than if there was no spouse. This includes adopted children, who are treated the same as a birth child from the date of the formal adoption.
It is vitally important for unmarried couples to protect themselves and each other by having professionally drawn up and executed wills in place. This will ensure that their loved ones do not have to face the heartache and worry of dealing with an estate being intestate when they pass away.
For advice on a disputed Will, contact Hayley Gaffney in Coodes Solicitors’ Personal Disputes team on firstname.lastname@example.org or 01726 874700. For advice on making a Will, contact the Wills, Probate and Trusts team on 0800 3283282.