Dear Bryan,
As a regular customer, you will know from the disclaimer below that
this is not legal advice and is only general information.
I am assuming this is a heterosexual relationship ? let me know if
this assumption is wrong. From my research, I do not think ?place of
abode? or ?matrimonial home? is relevant. It is whether they lived in
the same household.
If a person dies without making a will, certain rules apply for the
distribution of the estate. The Administration of Estates Act, 1925,
details who gets what in every situation. A partner, not married, is
not entitled under this Act to the estate. However, under the
Inheritance (Provision for Family and Dependants) Act 1975, as amended
by The Law Reform (Succession) Act 1995, the partner may make a claim
on the estate subject to certain provisions.
This helpful leaflet provides information on how an intestate estate
is distributed and goes on to state who can claim -
"...a partner who lived with the person who has died for at least two
years immediately before they died [...] If you think you may be
entitled to claim against the estate because you fall into one of
these categories, you should get legal advice. Claiming against an
estate is complicated, and there are time limits and other conditions
you need to know about. You must lodge your application within six
months of probate or letters of administration being granted."
http://www.which.net/campaigns/retail/cls/10.pdf
This Guardian article covers the problem as well -
"Intestacy [...] Unlike under a will, however, only family can take on
the power to handle the estate. The surviving husband or wife will be
given priority, followed by any children (as long as they are over
18), grandchildren, parents, brothers or sisters, grandparents and
finally, uncles and aunts. In the absence of these relatives, the
state will step in. Unmarried partners will have no say in the
process.
The same logic applies to the distribution of the money. If you are
not married, only your family will benefit. Under the Administration
of Estates Act 1925, children inherit first, in their absence,
grandchildren, then parents, siblings and so on. If you have no
family, it will all end up with Gordon Brown.
However, anyone who is dependent on you and does not currently
inherit, such as a partner living in your house, may be able to make a
claim for provision from the estate under the Inheritance (Provision
for Family and Dependants) Act 1975. As they would have to go to court
to do so, this is not ideal. "It is a pretty long-winded and complex
route to go down," warns Shaun Parry-Jones, a partner with Surrey
lawyers Hart Brown."
http://money.guardian.co.uk/aforeyego/story/0,14036,1082590,00.html
Thomson Snell & Passmore, Solicitors, provide some additional
information in a helpful information sheet.
"As a cohabitee it is essential that you make provision for your
partner in your Will if you want him/her to be provided for
financially in the event of your death. If you die "intestate", that
is to say, without having made a Will, your estate will be divided
according to intestacy rules. Your estate is likely to be divided
amongst certain of your family (your spouse being the largest
beneficiary) and in the event you have no family may even revert to
the Crown. Cohabitees do not benefit automatically under the intestacy
rules. The intestacy laws will not recognise a separation between
spouses as sufficient to disqualify him/her from the potential
benefit. Only a divorce would achieve this."
"The Inheritance (Provision for Family and Dependants) Act 1975
If your partner dies intestate or his/her Will fails to make any or
adequate provision for you, you may be able to bring a claim under the
above Act for reasonable financial provision but you have to have been
living together for at least 2 years before death and be dependent
upon the deceased. The 1975 Act is no substitute for a properly drawn
and regularly updated Will. Proceedings under the Act are inevitably
expensive, protracted and stressful whereas the cost of making a Will
is by comparison inexpensive. Remember that marriage will
automatically invalidate an earlier Will unless that Will was written
specifically in anticipation of the marriage."
http://www.ts-p.co.uk/information_sheets/Cohabitees%20Your%20Rights.pdf
The leaflet also discusses out how a partner could make claim on a
property which was on registered in a partner?s name. This is written
in the context of both partners being alive, but would be relevant for
any hearing under the Inheritance (Provision for Family and
Dependants) Act.
The Northampton University, Law Section, informs us the Act was
amended by the The Law Reform (Succession) Act 1995.
"3.2.2 The Law Reform (Succession) Act 1995, altered the grounds for
claims by an unmarried cohabitee, for all deaths after Jan 1 1996.
This provision reads : "This subsection applies to a person if ....
during the whole of the period of two years ending immediately before
the date when the deceased died, the person was living (a) in the same
household as the deceased, and (b) as the husband or wife of the
deceased."
3.2.3 The fifth category of "Dependant" was previously the only one
under which an unmarried cohabitee could claim, and can still be used
if the 2 year category does not apply. The criterion is not
"fairness", but "dependancy". Under s.1 (3), maintainance is defined
as "a substantial contribution in money or money?s worth...towards the
reasonable needs of that person" BUT "otherwise than for full valuable
consideration." Thus a cohabitee who has "paid her way" cannot claim,
if her contributions to the relationship were equal to those of her
partner
3.3 Amount of entitlement. The claimant spouse will be entitled to
"reasonable provision". Other categories of claimant are limited to
provision for their "maintainance", which is more restrictive.
3.4 Orders available. The court can make any order set out in s.2(1)
of the Act. These include
periodical payments
a lump sum,
transfer of property,
sale of property
the purchase of property (such as a smaller house for the claimant)."
Northampton University Law Section
http://nli.nene.ac.uk/mmb/lawacc/tcb/Financial%20Rights%20During%20Marriage.htm
The 1975 Act is not available online in full, but can be purchased at the HMSO.
Part of the Act appears here.
http://www.swarb.co.uk/acts/1975InheritanceProvisionforFamily_DependantsAct.html
The full text of the Law Reform (Succession) Act 1995 (c. 41), appears here.
http://www.hmso.gov.uk/acts/acts1995/Ukpga_19950041_en_2.htm
As for property abroad, this is going to be difficult to answer, for
it depends on the country where the property is located and their
relevant legislation. Even if a will is made, the position is not
straight-forward. Various legal sites suggest that separate wills
should be made for property held abroad. In some cases it suggests
that these wills should be made in the relevant jurisdiction. In some
countries, UK law in respect of wills is recognised and takes
precedence. But as this site indicates: "Distribution of immovable
property held overseas has to be carried out in accordance with the
law of the land in which that property is situated."
http://www.rate.co.uk/writing_a_will/do_i_need_a_will.html
Grant-Thorton leaflet
"Do Wills apply everywhere?
Wills are usually only operative in the country for which they have
been written. If you have assets abroad it may be necessary to have a
separate will made to cover those items specifically. You should take
local legal advice if this applies to you."
http://www.grant-thornton.co.uk/pages/services-tax-personal_tax-inheritance_tax/$FILE/Wills%20and%20Estates.pdf
These are the examples of Spain and Cyprus.
"The Probates (Re-Sealing) Law makes special provisions for persons
who die in the United Kingdom or in any British Dominion or in any
country of the British Commonwealth and who, at the time of their
death, also had property in Cyprus. According to this law, the Grant
of Probate or the Grant of Letters of Administration issued by a
competent Court of such country may be re-sealed in Cyprus and an
administrator may be appointed by the Court to administer their estate
in Cyprus."
http://www.chris-michael.com.cy/cyprus-properties-legal.htm
Spain ? English applies but it recommends a Spanish will or it will be
subject to Spanish law.
http://www.marbella-lawyers.com/index/articles/showArticle/spanish-estate-inheritance
In this Collyer-Bristow solicitors document, the same conclusion is
reached for intestate -
"...where there is no Will the PRs will be determined by UK or foreign
law depending on the deceased's domicile. Succession to an intestate's
estate will also be governed by their domicile and the location of
their assets"
http://www.collyerbristow.com/site/default.asp?s=55&cID=531&ctID=13
In would appear then that it would depend on the relevant country?s
laws whether they would accept any order from the UK court under The
Inheritance (Provision for Family and Dependants) Act 1975 as amended
by The Law Reform (Succession) Act 1995.
As I said above, this is not legal advice but this appears to be the
current position. In my research I came across many web sites of
solicitors who specialise in the Inheritance (Provision for Family and
Dependants) Act and they will no doubt be able to provide suitable
advice. Let me know if you want their details.
I hope this answers your question. If it does not, or the answer is
unclear, then please ask for clarification of this research before
rating the answer. I shall respond to the clarification request as
soon as I receive it.
Thank you
answerfinder
Search strategy (but not limited to)
intestate wills partner uk
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intestate wills property abroad
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