Advice Column – Where do I stand if my partner dies without leaving a valid will?
My partner with whom I have had a long-standing relationship died unexpectedly a short time ago. We were not married. Although we had talked about it quite a lot we had not got round to making a will. I know he would have wished me to inherit his estate, but, without a valid will, where do I stand? I am particularly worried that I might lose the house where I have lived for fifteen years.
When a person dies without leaving a valid will, their property (the estate) must be shared out according to certain rules. These are called the rules of intestacy. A person who dies without leaving a will is called an intestate person.
Only married or civil partners and some other close relatives can inherit under the rules of intestacy. The following people have no right to inherit where someone dies without leaving a will: unmarried partners; lesbian or gay partners not married or in a civil partnership; relations by marriage; close friends; carers.
Married partners or civil partners inherit under the rules of intestacy only if they are actually married or in a civil partnership at the time of death. So if you are divorced or if your civil partnership has been legally ended, you can’t inherit under the rules of intestacy. 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.
Often the largest single component of an estate is the value of a home. What happens to a home will depend on who formally owns it and therefore whether it, or some of it, is part of the estate.
Couples may jointly own their home. 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.
If you own your property as a beneficial joint tenant, this means that it belongs to you and the other owner jointly. You can’t re-mortgage or sell the property without the agreement of the other owner. (However if there is a dispute, you can apply for a court order). As a beneficial joint tenant, you don’t own specific shares in the property and you can’t give away a share of the property in a will. If you die, your interest in the property passes automatically to the other owner.
However, if you own your property as tenants in common, this means that it belongs to you and the other owner jointly, but that you own a specific share of its value. You can give away, sell or mortgage your share. If you die, your share of the property does not pass automatically to the other owner.
If you’re not married or in a civil partnership and you don’t own the family home as a beneficial joint tenant, you may still have some rights to it if you’ve made some form of contribution. This is known as establishing a beneficial interest. Having a beneficial interest can give you rights to live in your home and a share of its value if sold.
Beneficial interest is an interest in the economic benefit of property. It can give you a right to live in a property, a financial share in it, or both. Beneficial interest can arise if some form of trust has been created. Even though a property is in one name, the trust requires that the benefit or value of the property is shared, but not necessarily equally. 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.
Couples may also have joint bank or building society accounts. If one dies, the other partner will automatically inherit the whole of this money. 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 intestacy rules.
Children of the intestate person will inherit if there is no surviving married or civil partner. If there is a surviving married or civil partner, they will inherit only if the estate is worth more than a certain amount. However, a child whose parents are not married or have not registered a civil partnership can inherit from the estate of a parent who dies intestate. Adopted children (including step-children who have been adopted by their step-parent) have rights to inherit under the rules of intestacy. But otherwise you have to be a biological child to inherit.
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 family arrangement or variation. 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. You may get legal aid.
However, even if you can’t inherit under the rules of intestacy, you may still be able to apply to court for financial provision from the estate of a person who has died intestate. For example, if 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 could apply to court for financial help. You must have lived with them for at least two years immediately before their death. You must make the application within a certain time limit although in some circumstances this can be extended. The court may order: regular payments from the estate; a lump sum payment from the estate; or property to be transferred from the estate. If you want to apply to the court for financial help, you will need legal advice.
This is often a complex situation which arises at a very distressing time, so if you are affected by any of the issues described here, it is sensible to seek advice through your local Citizens Advice centre.