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Thursday, 6 January 2011

What to do if there is no will

If someone dies without making a will, they are said to have died 'intestate'. If this happens, the law sets out who should deal with the deceased's affairs and who should inherit their estate (property, personal possessions and money). This information covers England and Wales only.

Getting expert help from a solicitor

When someone dies without leaving a will, dealing with their estate can be complicated. It can also take a long time - months or even years in some very complex cases.

If matters are complex or you feel you need help, it's a good idea to consult a solicitor as soon as possible. It's advisable to show them all the information and documentation you have about the deceased person's property, belongings and financial affairs. In the meantime, it may be a good idea to put small valuable items away for safekeeping.

To find a solicitor you can use the search facility on the Law Society's website or call them on 0870 606 6575 (Monday to Friday, 8.30 am to 5.00 pm).

Who can deal with the deceased person's estate?

Usually a close relative like a spouse, child or parent will have the legal right to sort out the estate of the person who has died.

Applying for a Grant of Letters of Administration

In order to be able to administer someone's estate you normally need to apply to the Probate Registry for a 'Grant of Letters of Administration'. You can ask your solicitor to help you with applying for a grant or you can make a personal application.

On receipt of the grant you become the 'administrator' of the estate. The grant provides proof to banks, building societies and other organisations that you have authority to access and distribute funds that were held in the deceased's name. The overall process is often referred to as 'obtaining probate', though technically this term applies where there was a will.

Note that if Inheritance Tax is due on the estate some or all of this must be paid before a grant will be issued. Read the detail in our related articles 'Applying for probate' and 'Valuing an estate for Inheritance Tax'.

When a grant may not be needed

If the deceased's estate is below £5,000, and doesn't contain any land, property or shares, then it may be possible to deal with it without obtaining a grant. Also, a grant might not be needed if the whole of the estate is held in joint names and passes automatically to the surviving joint owner.

Who will inherit the deceased's estate?

If someone dies without a will, there are rules for deciding who inherits the estate. The outcome depends on the deceased's personal circumstances.

For those who were married or in a civil partnership when they died, the first person entitled to the estate is their spouse or civil partner, although they will not necessarily inherit all of it. The amount they would inherit depends on how much is in the estate, and which blood relatives survive.

The rules regarding inheritance changed in February 2009, so now different rules apply depending on whether the deceased person died before or after 1 February 2009.

These rules are complex, but information is available from the Probate Service.

If you were partners but weren't married or civil partners

If you weren't married or registered civil partners, you won't automatically get a share of your partner's estate if they don't make a will.

If they haven't provided for you in some other way, your only option is to make a claim under the Inheritance (Provision for Family and Dependants) Act 1975 - see the next section.

If you feel you've not received reasonable financial provision

If you feel that you have not received reasonable financial provision from the estate, you may be able to make a claim under the Inheritance (Provision for Family and Dependants) Act 1975. To make a claim you must have a particular type of relationship with the deceased, such as child, spouse, civil partner, dependant or cohabitee.

Bear in mind that if you were living with the deceased as a partner but weren't married or in a civil partnership, you'll need to show that you've been 'maintained either wholly or partly by the deceased' - this can be difficult to prove if you've both contributed to your life together.

You need to make a claim within six months of the date of the grant of letters of administration.

This is quite a complicated area and a claim may not succeed. It's advisable to ask a solicitor's advice. They would charge for this service.

Further information

The Probate and Inheritance Tax Helpline offers information. Telephone: 0845 302 0900. Lines are open 9.00 am to 5.00 pm Monday to Friday.

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