If you’re married or have a Civil Partnership and either you or your partner dies without leaving a valid Will, your Estate would be dealt with under Intestacy Rules. This means that how the Estate is divided is determined by a list of the relatives in an order of Priority. A spouse or Civil Partner will automatically inherit £250,000 of the estate and any personal chattels (personal goods). The remaining estate is then divided in half, with one half going to the spouse or civil partner and the remaining half being divided between any living children.
If you are cohabiting but not a spouse or civil partner you are not entitled to inherit any part of the estate, but there are other legal options available:
You could claim against the estate under the Inheritance (Provision for Family and Dependents) Act 1975 as an individual who falls in to one of several categories is able to bring a claim for a greater share of an estate. A claim can be brought by a cohabiting partner who was cohabiting for at least two years before their death. The Courts would take in to account various factors, but if the Court finds in favour of the applicant this can include provision of housing.
Another option is to Claim for beneficial ownership of the property. This may be possible to establish beneficial ownership by showing that this was the common intention of shared ownership between the couple, or by showing that a promise of shared ownership was made by the legal owner to their partner, which the partner relied on to their detriment. If beneficial ownership is established, the legal ownership of the property would still transfer to another under the Intestacy Rules, but the legal owner would then be treated as holding the property on trust for all beneficial owners.
If you jointly own a property there are different ways it can be owned, It is highly advisable to know ‘how’ you own your property and to have a Will prepared to ensure your property and other assets will pass in accordance with your wishes.
Property can be owned as Tenants in Common or Joint Tenants. If you own your property as Joint Tenants with one or more other parties, you therefore own the ‘whole together’ and, on one party’s death, the property automatically passes to the other Joint Tenant. Even if this party has made a Will making some other provision for the property – the rule of survivorship would prevail.
If you own your property as Tenants in Common, you each own respective shares in the property (these can be equal or unequal). If unequal shares are held it is advisable to draw up a Declaration of Trust to set out the shares of the equity. On the death of one of them, their share in the property would pass under the terms of their Will, or Intestacy if no Will has been left.
If you wish to leave your share of your property to your children but allow your spouse or partner to remain living in the property for the rest of their life, the home would need to be owned as Tenants in Common to allow your share to pass in to trust for the survivor, rather than outright survivorship. Very useful if you wish to provide for a new partner or spouse whilst protecting your share of the home for children from a previous relationship.
For further information or for help in this regard, please contact us on 01638 661116 (Newmarket) or 01638 712243 (Mildenhall) and our experienced team will be happy to help.