The purchase of a new property can be an exciting (and stressful!) time. It is also an important time for you to make a new Will, or to consider updating your current Will as you are completing one of the largest, or the largest, purchases of your life.
Upon death to whom your property passes depends on how you own it:-
• Property owned in your sole name – will pass under your Will, or if you have no Will under the intestacy rules
• Property owned in joint names as joint tenants – will pass to the surviving joint owner (irrespective of what your Will says)
• Property owned in joint names as tenants in common – your share will pass under your Will, or if you have no Will under the intestacy rules
• Property ownership set out in a declaration of trust – this normally will include specific details of what should happen to your share upon death, but it is important to check this.
Your Will enables you to choose who should inherit your property. It can also save complications (and therefore costs) in dealing with the administration of the estate.
Cohabitees & the intestacy rules
If you are cohabiting it is essential that you consider making a Will. If you die without making
a Will you die “intestate”. Your estate is then distributed in accordance with rules set out by
Parliament, called the “intestacy rules”.
Under the intestacy rules there is NO provision for a cohabitee. Therefore, unless you own your property as joint tenants your cohabitee will have no automatic right to inherit the property (or any other assets in your estate), and is at risk of being made homeless. Also under the intestacy rules your estate will pass to your relatives. Usually a cohabitee is not related to you and so will have no entitlement under the intestacy rules.
Making a Claim Against an Estate
If as a cohabitee your partner dies and has failed to “make reasonable financial provision for you” (for example if under the intestacy rules you had no entitlement in his/her estate) you would have to consider making a claim against their estate.
To make a claim you would have had to have been:-
• living with your partner during the whole of the period of 2 years ending immediately before the date that they died and
• in the same household as the deceased and
• as their husband/wife.
The court will assess what “reasonable financial provision” is required, but as a cohabitee this is limited to provision for maintenance only. The deceased’s financial resources will be taken into account as will your own financial needs and resources.
To avoid the worry, cost and complications of having to make a claim against an estate we strongly advise you to make a Will.
Making a Will in most cases is a straightforward process. We will meet with you to discuss your instructions and provide you with guidance and advice. We aim to provide a friendly and efficient service.