Where there is no Will – Financial Provision for the Family & Dependants

Where there is no Will and someone passes away, they are said to have died intestate.

Where there is no Will – financial provision for the family & dependants is governed by a set of rules known as the Laws of Intestacy. These define who looks after the deceased’s financial affairs, their estate, and who will inherit it.

Where there is no Will only a spouse, a blood relative, or an adopted child can inherit automatically from someone who has died. In other words, the Laws of Intestacy make provision for the deceased’s immediate family. In descending order of priority these include the surviving married or civil partner, children, grandchildren, great grand-children, parents, brothers, sisters, nephews or nieces.

It is important to note the Laws of rules of Intestacy do not cover cohabiting partners, often referred to as ‘common-law’ partners, (i.e. those who are not married or in a civil partnership) and stepfamilies (children and adults) unless the parent who died had formally adopted the stepchild.

Just to be clear, where there is no Will and a cohabiting partner passes away and has not divorced their original spouse, the new partner/cohabitee and their children (i.e. stepchildren to the deceased) have no claim on the deceased’s estate. In this case, it’s the original spouse that inherits everything.

In such a situation what can common law partners and stepchildren do? They have no rights to inherit under the laws of intestacy but may have been financially dependent on the deceased for their wellbeing and a roof over their head?

In this instance where reasonable financial provision has not been made by the deceased it’s possible for them to make a claim under The Inheritance (Provision for The Family & Dependents) Act 1975.

In order to make such a claim the surviving partner must have been living as cohabitee with the deceased for a period of two years immediately prior to their death and been wholly or in partly financially dependent on them.

In the case of a stepchild a claim can be made where they were treated as a child of the family by a married stepparent or they were financially dependent on them.

It should be noted that any application under the Inheritance Act should be made within six months of the date of the grant of probate/letters of administration.

If the court decides to make reasonable financial provision, it can order: regular payments from the estate for a period of time; a lump sum payment; a transfer of property from the estate; setting up of a trust to provide a home for the spouse/stepchild to live in for life.

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