Losing a partner is one of the most difficult experiences anyone can face, and trying to deal with a complex legal process can often add to the pressure. In the case where your partner did not have a Will, known as ‘dying intestate’, it is crucial to understand your legal rights and where to get professional legal support if needed.

There is a common misconception that if a person dies, their partner will automatically inherit everything. However, this is not the case under current UK law.

The intestacy rules in England and Wales set out a specific order of inheritance, and depending on your relationship status and family circumstances, you may not automatically be entitled to inherit what you assumed you would or what you might actually need.

What Does Dying Intestate Mean?

Dying intestate means that someone has died without a valid Will, and their estate will be distributed according to the intestacy rules. The intestacy rules (which are strict rules laid down by the Government), determine who inherits what, and in what order, and this may not match what the deceased person wanted or what their loved ones actually need. The intestacy rules apply to everything the deceased owned, including:

• their property and land
• their bank accounts
• all of their investments
• their personal possessions
• any business interests they might own.

The intestacy rules will apply to assets held in the deceased’s sole name. As regards jointly held assets, such as a property owned as “joint tenants” or a joint bank account, typically such assets will pass automatically to the surviving owner. However, if the property owners are “tenants in common”, this will be more complex since each owner’s share is separate. The deceased’s share in an asset can be passed on to a beneficiary through their Will. However, if there is no Will, the deceased’s estate will be distributed according to the rules of intestacy.

What Are You Entitled to Inherit?

Your legal right to inherit from the estate under an intestacy depend entirely on your relationship with the person who has died and whether they had any children.

Couples Who Were Married or in a Civil Partnership

Married spouses and civil partners have the strongest legal protection under the intestacy rules.

• Estates worth up to £322,000*

If the estate is worth up to £322,000 and your partner dies without a Will, if you are the husband, wife or civil partner, you are entitled to the entire estate.

• Estates worth over £322,000*

The estate will be divided between the surviving spouse or civil partner and the deceased’s children. The husband, wife or civil partner gets:

• Up to £322,000 in assets, and half of the rest of the estate
• All of the personal possessions of the deceased

The children of the deceased are entitled to a share of the half of the estate above £322,000.

If any of the children died before the deceased, their children (grandchildren of the deceased) will inherit in their place.

If any of these grandchildren died before the deceased, their children (great-grandchildren of the deceased) will inherit in their place.

If any of these people died after the deceased, their share will become part of their own estate.

The above rules apply to biological children and adopted children. Stepchildren (and their issue) would not be entitled to inherit under the intestacy rules unless a stepchild had been formally adopted by the deceased.

*The above calculations are based on the intestacy rules for England and Wales, post July 2023, and may differ if the deceased died before this time or was domiciled elsewhere. Further guidance on who can apply for probate or inherit if someone dies without a Will can be accessed here: https://www.gov.uk/inherits-someone-dies-without-will

Rights for Unmarried Couples Who Were Living Together

Unmarried couples are not afforded the same legal rights as married or civil partnership couples. Sometimes referred to as ‘common-law partners’, cohabiting couples have no legal rights under the intestacy rules, regardless of how long they have lived together or whether they had any children together. If you are unmarried but have children, the entire estate will be divided equally between the children once they reach 18. You can apply to manage the estate on behalf of the children, but it is not automatic that you will be granted this right. Your partner’s parents might apply or one of your partner’s siblings.

If you were financially dependent on your partner or if you lived in a property owned solely by your partner, this could cause you huge financial hardship. You might be able to make a claim against your partner’s estate, but this could prove embarrassing, time consuming and costly.

If you are cohabiting with a partner and wish to ensure that you are provided for after their death, it is essential that you either marry or that your partner makes provision for you in a Will.

Who Can Make a Claim Against an Estate?

If you have not inherited anything from your partner’s estate due to the intestacy rules, or if you believe that the provision made for you is insufficient, you may be able to make a claim under the Inheritance (Provision for Family and Dependants) Act 1975.

The Act clearly defines who can make a claim. It includes:

• the spouse or civil partner of the deceased
• a former spouse or civil partner of the deceased who has not remarried or formed a new civil partnership
• someone else who was being financially maintained by the deceased
• any biological or adopted child of the deceased
• someone who was treated as a child of the family by the deceased
• a person who was living with the deceased as their husband or wife for a minimum of two years before the deceased died.

What are the Time Limits for an Inheritance Act Claim?

Typically, claims under the Inheritance Act must be brought within six months of the date of the grant of probate. To find out whether a grant has been issued, you can search GOV.UK here: Search probate records for documents and wills.

In some cases, there may be circumstances in which you can bring an Inheritance Act claim after the six months have expired, but you will need to seek permission from the court to do so. It is important to realise that this is a complex area of law, so if you are considering making a claim under the Inheritance Act, it is essential to seek advice from a regulated, experienced professional.

If you are uncertain about your legal rights in relation to an inheritance, or need advice regarding making an Inheritance Act claim, our experienced contentious probate team can support you throughout the process of contesting a Will, carefully and competently. Our professional team deals with a wide variety of issues including:

• challenging a Will
• cases of Inheritance Act claims by dependants who were not sufficiently provided for
• trusts disputes
• executor disputes
• beneficiary disputes
• proprietary estoppel and constructive trust claims.

Who Applies for Probate When Someone Dies Intestate?

Probate is the legal process that gives someone the authority to deal with a deceased’s assets, pay off any debts and distribute what remains to the rightful beneficiaries. Where there is a Will, it is known as applying for a grant of probate. You might not need a grant of probate if the estate is very small or if the assets can be passed to the beneficiaries without one, eg. where there is jointly owned property or money which will pass automatically to the surviving owner.

If someone dies without a Will, someone will need to apply for a grant of ‘letters of administration’. Under the intestacy rules, there is a strict order of priority as to who may apply to manage the estate of someone who has died without a Will, namely:

• their spouse or civil partner
• their child
• their parent
• a sibling
• other relatives in a specific order.

If you are a surviving spouse or civil partner, you have the first right to apply for a grant of letters of administration. However, if you were not married, you may need to seek legal advice, particularly if there is a dispute over who should administer the estate.

Why Professional Legal Help Matters

Administering an intestate estate can be more complicated and time consuming than obtaining probate where someone has left a Will. Navigating the intestacy rules and the process of obtaining a grant of letters of administration can be overwhelming, particularly at an already emotional and stressful time. There are strict legal requirements, tight deadlines and significant responsibilities in administering any estate. These responsibilities must be taken seriously as executors or administrators can be held personally liable for any errors made during the estate administration process.

Enlisting the help of an experienced solicitor specialising in probate can help by:-

• explaining your legal rights and entitlements under the intestacy rules
• advising you on whether you have grounds to make a claim against the estate
• handling the entire probate process on your behalf, including valuing the estate, applying for the grant, and distributing the assets
• resolving disputes between family members or other beneficiaries
• ensuring that all legal and tax obligations are met.

Read our previous article for related information: ‘What is Involved in Probate?’

Probate Solicitors Blackheath

At Beverley Morris & Co., we understand that losing a loved one is a very difficult time. In addition to managing your grief, there is the practical administration of a loved one’s affairs which to many can seem like a daunting prospect, especially if no Will has been left.

Our Probate Solicitors in Blackheath have been helping families and individuals across London and the South East navigate the complexities of intestacy and probate for many years.

Whether you need advice on your legal rights, assistance with applying for a grant of letters of administration or support in making a claim against an estate, our specialist solicitors are here to guide you through every step of the process.

Our local, sensitive and approachable team is on hand to help make the process as stress-free as possible, ensuring your rights are protected and the estate is administered correctly.

For more information on probate and the wider estate administration process, please call 020 8852 4433 or email privateclient@beverleymorris.co.uk.

Probate is officially the legal right to deal with someone’s property, money and possessions (their estate) when they die.

However, the term has become synonymous with the entire process involved in managing a deceased person’s estate (estate administration) and therefore the term is now used almost interchangeably.

The estate administration process can be complicated, and many people encounter difficulties when trying to manage their loved one’s affairs.

If the deceased left a Will, it should include the name of an ‘executor’ who is the person (or people) they wish to administer their estate. If there is no Will (an intestate estate), an ‘administrator’ will be appointed following the rules of intestacy to undertake the estate administration process.

Executors and administrators are collectively known as ‘personal representatives’ (PRs).

PRs must follow a strict legal process when administering an estate and may be personally liable for any mistakes they make.

If you have been named as an executor in a Will or if a loved one has died without a Will, our specialist probate and estate administration team can help.

We will guide you through the entire estate administration process, helping you navigate your obligations at this difficult time.

For more information on probate and wider estate administration, please call 020 8852 4433 or email privateclient@beverleymorris.co.uk.

In this blog, our experienced Probate Solicitors in Blackheath consider the main stages involved in estate administration.

Main Stages of Probate

Although every estate is different, the steps involved in probate can be broken down as follows:

Step one: Identifying the deceased’s assets and any liabilities.

After registering the death and in some cases also dealing with the funeral arrangements, an executor’s or administrator’s next job is to value the deceased’s estate.

This involves first identifying the assets that comprised the estate (cash, property, personal possessions) along with any liabilities such as mortgages, loans or outstanding bills.

PRs must also establish if any gifts were made during the last seven years of the deceased’s lifetime and locate any interests in any Trusts.

Step two: Valuing the deceased’s assets.

Once the PRs have established the various assets that comprised the deceased’s estate, they then need to assess their total value.

This may involve instructing specialist valuers, depending on the assets.

Having a clear and accurate understanding of what an estate is worth is essential before applying for a grant of probate (or ‘letters of administration’ for an intestate estate) in order to protect an executor or administrator against any possible future claim.

Step three: Preparing the inheritance tax (IHT) return.

PRs must report the value of the estate to HMRC by completing Form IHT400 which must be submitted within 12 months of the person dying.

The IHT400 Form is used to calculate the amount of inheritance tax that is due on the estate.

IHT is charged at 40% on the estate of someone who has died, above a £325,000 threshold.

NB There are circumstances where the £325,000 threshold is increased to a higher figure.

Step four: Submitting the IHT return and paying any tax due.

If IHT is due, it must be paid before an application for the grant of probate/letters of administration can be made.

Usually, the tax can be paid directly from one of the deceased’s bank accounts, or in instalments.

Any IHT due must be paid by the end of the sixth month after the person’s death, otherwise HMRC will start to charge interest.

Your solicitor will advise you on what your options are.

Step five: Making the application to the Probate Registry for a grant of probate/letters of administration.

Once a PR has made a payment towards any IHT due, they can then apply for a grant of probate/ letters of administration that will give them the legal authority to distribute the estate.

This application will usually take about 16 weeks although it can take longer depending on the circumstances.

Step six: Distributing the estate.

Once all outstanding debts have been settled, the PRs can then distribute the assets to the beneficiaries as set out in the deceased’s Will or according to the law of intestacy.

Probate Solicitors Blackheath

At Beverley Morris & Co., we understand that losing a loved one is a very difficult time. In addition to your having to manage grief, there is the practical administration of a loved one’s affairs which for many can seem like a daunting prospect.

Our Probate Solicitors in Blackheath have been providing probate and estate administration services throughout London and the South East for many years.

Our local, sensitive and approachable team is on hand to help make the process as stress free as possible.

Our estate administration service includes legal advice on:

• Collating assets and arranging valuations.
• Calculation and payment of inheritance tax.
• Obtaining a grant of probate.
• Payment of debts and expenses.
• Distribution of the estate to the beneficiaries.
• Calculation of income tax and capital gains tax (CGT) and correspondence with HM Revenue & Customs.

For more information on probate and the wider estate administration process, please call 020 8852 4433 or email privateclient@beverleymorris.co.uk.

Find out more here.

In short, probate is the legal right to deal with a person’s property, money and possessions when they die. The collective term for property, money and possessions is an ‘estate’.

An estate is only distributed once a Grant of Probate has been obtained. This legal document gives the executor (the personal representative appointed) the legal right to deal with the estate in accordance with the Will or, in a case where there is no Will, under the rules of intestacy.

Although it is possible to contest a Will after probate has been granted and the estate has been distributed, the process can be far more complicated than if the dispute is raised before this time.

Why contest a Will?

It is possible to contest a Will where you have a challenge regarding the validity of the Will or you wish to make a claim against the deceased person’s estate for reasonable financial provision (as described in the Inheritance (Provision for Family & Dependants) Act 1975 – “1975 Act claim”.

Under the 1975 Act, a claim for reasonable financial provision out of a person’s estate must be filed at court within six months of the Grant of Probate (or Letters of Administration if the deceased died intestate). Permission from the court is required to make such a claim outside this time limit, which is only granted in exceptional circumstances.

Contesting a Will after Probate

As with any dispute, seeking legal advice and bringing a claim forward as early as possible is essential. Particularly in these circumstances, acting quickly is vital because assets or finances may need to be recovered (in a case where the claim is successful). Failure to do so may be problematic and lead to high costs in resolving the issue.

A challenge to the validity of a Will aims to invalidate a Will due to some fault in the circumstances surrounding its preparation or the way in which it was signed and witnessed. The purpose is to revive a previous Will (if there was one) or to distribute the estate according to the intestacy rules if there was no previous valid Will.

There is no specific time limit for bringing such a claim to court. However, if a person delays in filing a claim after probate has been granted, there is a greater likelihood that the estate will already have been distributed to the beneficiaries named in the Will.  Tracing assets to the beneficiaries and recovering them can be challenging, time-consuming and costly if the assets have already been dissipated. Moreover, evidence may weaken over time where files and records have been destroyed and key witnesses’ memories may fade.

Will Solicitors Near Me

Seeking the advice of a trusted solicitor regarding any matter relating to Wills and estate administration is essential, particularly in cases where time has passed or you are uncertain as to your rights.

To speak to a trusted legal professional regarding your Wills and probate matter today, please contact Beverley Morris & Co., solicitors in Blackheath, who can talk through your matter with you and assist you in taking the best course of action.

Please call 020 8852 4433 or email enquiries@beverleymorris.co.uk today.

Coronavirus has led to drastic changes in all industries, including the legal sector. Most organisations had to adapt to a predominantly online presence for fear of survival.

How did COVID affect the Probate process?

As a direct result of Coronavirus, HM Courts and Tribunals Service (HMCTS) mandated online services for grant of Probate applications by professional users, except for cases with more specialised applications. HMCTS also continued to allow professional user applications for grants of letters of administration to be made using either the traditional or online method for a registry.

Why is there a delay for Probate?

Since 2018, the Ministry of Justice has been experiencing delays to Probate – ever since the initial proposal was set out to increase fees. At this point, there was a significant increase in applications due to the lack of information and certainty regarding the new cost structure and process. Issues were then extended due to the new case management system.

Unfortunately, this issue was only exacerbated by the pandemic. Since the first UK coronavirus death in April 2020, there have been almost 150,000 more. This statistic is not only harrowing, but it also highlights the unimaginable strain that has been projected onto the Probate process. The multiple UK national lockdowns also severely affected the backlog of cases, especially the first back in March 2020 when the entire economy was shut down – including courts and solicitors – for almost two months. HMCTS published some figures in mid-May 2020 showing a 50% reduction in grant of representation applications.

The HMCTS has also experienced significant reductions in staff numbers, increasing the backlog further still. Despite this, the organisation has confirmed that they are on track to getting back down to pre-COVID levels in the coming weeks. In the future, they are committed to gradually returning to normal active caseloads of three to four weeks intake – aiming by March 2022.

What other changes are happening?

Back in September 2021, the government consulted on whether to adjust Probate fees. The proposed changes would mean a £273 fee for both professional and non-professional Probate applications – regardless of the estate size. The current fees differ for professional and non-professional users. It is currently £155 for professional users and £215 for non-professionals.

The Ministry of Justice commented saying that the proposed changes are being made to reduce the discrepancy between professional and non-professional applications. The change would also align with the HM Treasury’s guidance that ensures all users should pay the same fee for the same service.

How can we help?

Our Wills and Probate team will be happy to speak with you regarding all areas of wills, probate, inheritance planning and trusts. You can find out more about our Probate services here.