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.