Writing a will stops loved ones being frozen out of finances

12 May 2021 | Katie de Swarte

An estimated 59% of the UK population have not made a will, so when one half of a couple dies unexpectedly, the partner left behind can often face financial insecurity and uncertainty about whether they will even be able to remain in the home they both shared.

If the couple were not married or in a civil partnership, the bereaved partner can be shocked to find they have no automatic entitlement to inherit anything from their partner, no matter how long they have shared a life together.

Experts at London law firm Osbornes Law warn that they could face a lengthy legal process to maintain ownership of the family home that may bring them into conflict with their children, step-children or their partner’s relatives.

Even if the couple were married, intestacy laws will see the assets divided between the husband or wife and any children they have, sometimes including a share of the family home.

Katie de Swarte, a lawyer specialising in contentious probate at Osbornes Law, says, “We still see a lot of people who think that if you have lived together for many years but are not in a marriage or civil partnership, you will inherit as a ‘common law’ husband or wife.  They are shocked to learn that under intestacy laws, they have no entitlement to inheritance and that in cases where they do not share ownership of the family home, it will pass directly to their late partner’s nearest relatives.

“Even if you are married, if there is no will and you are not a registered owner or do not own the property as joint tenants, any children you have would inherit part of the house you live in. This is a potentially difficult situation for those with children or step-children who are over the age of 18, who in some cases may want to claim their share.”

The laws of intestacy mean that if someone dies without leaving a will, their assets will go first to their spouse and any children.  If they are not married, the inheritance goes to their children, if they have them, and if not, to their parents. If their parents are no longer alive, assets go to their siblings. If there are no living relatives the assets fall to the Crown. Unmarried partners, therefore, have no automatic right to inherit and unless there are grounds for a legal challenge, will be left with nothing.

For those who are married with children, the husband or wife will inherit the first £270K of assets and all personal possessions, with the remainder divided; 50% going to the surviving spouse and the remaining 50% split equally between the children.

Katie says, “We see clients whose partner has died without a will and find that part or all of the property they live in is set to be inherited by their late partner’s relatives or their own children or step-children.  Often such situations can be resolved amicably – most grown-up children don’t want to see their parent forced out of their own home – but in order to ensure the bereaved partner is able to keep the house and have some degree of financial security, they may need to bring a claim under the 1975 Inheritance Act.”

The 1975 Inheritance Act allows dependants of the deceased to claim against the estate if they have not been provided for adequately.  For unmarried couples, they stand a good chance of success if they are able to prove they have lived together for at least two years prior to death as if they were married. Evidence such as joint bank accounts, mortgage payments and bills would be useful in this situation. Bereaved spouses can also bring this type of claim if what they are left under the intestacy rules does not provide them with reasonable provision.

Katie says, “It’s not uncommon for people to end up having to make a claim against their own children for a share of their partner’s estate – not a comfortable situation for anyone.  Even though children under-18 will have their share of the property held in trust for them, most commonly by their living parent, this would not prevent their share becoming vulnerable in light of a dispute.

“If a dispute did ensue, a minor child would also need the right representation as any agreement would have to be binding on them to protect the bereaved partner or spouse in the future.  The situation can become even more tricky if it is step-children who are entitled to part of the house, especially where the relationship has broken down.

“These claims generally settle long before going to court, particularly if the person left behind can easily show they were financially dependent on their late partner. Compromises can be agreed, such as lump sums being paid to the deceased’s close relatives or the partner of the deceased being given a life interest in the house, allowing them to live there for as long as they wish.”

Alternatively, for those partners who do not own the family home with the deceased it is possible to try and establish a beneficial interest in a property by demonstrating they have contributed towards it in some way, perhaps paying the mortgage or for significant renovations or repairs.

Katie explains, “When your partner dies without a will, you can be faced with financial uncertainty at an already very difficult time in your life.  Clearly the best way to avoid this is to ensure yourself and your partner make a will, but if you do find yourself in this situation it is possible to bring a successful claim and secure yourself financially, often without having to go as far as the courts.”

If you would like to discuss a similar issue with Katie, or, would like to write a will, please contact the team on 020 7485 8811 or complete an online enquiry form.

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