What Happens to an Estate Without a Will?

If you have never been involved with managing a loved one’s estate (personal belongings, assets, finances) when they die, or have never benefited from a loved one’s estate, you may be uncertain as to what happens to the estate, and who gets what. However, if you believe you have been left out or inadequately provided for in a will, you may be able to challenge a will to claim financial support under the Inheritance Act 1975.

In brief, what happens to an estate depends on whether a person left a will setting out their wishes, or whether they died without a will (known as dying intestate). Where there is a valid will, the starting point is that the estate will be distributed according to its terms. If no will exists, the estate is divided under the ‘intestacy rules’ set out in the Administration of Estates Act 1925, which establish a strict order of relatives who can inherit. However, disagreements can arise in both situations, for example, if someone feels unfairly left out or inadequately provided for, and these disputes are commonly referred to as contested probate.

One of the problems we all face is that we do not know the precise date that we will die. If a person dies before they have had chance to make a will, their estate will be distributed according to the rules of intestacy, meaning their estate may not be distributed to people they wanted to benefit or to people who expected to benefit. Equally, a will is only useful if it reflects the most up-to-date wishes of its owner. challenge a will through legal proceedings.

If a person dies years after writing a will, and there has been a significant change in their circumstances, including finances and people involved within their life, the will may not properly provide for the people who they would wish to benefit from their estate. These problems can therefore result in a relative, or even a dependent, being left without sufficient financial support.

Is it possible to get around the intestacy rules, or to alter the effects of a will after a person has died? As a matter of fact, the Inheritance (Provision for Family and Dependants) Act 1975 (“the Act”) provides for just these scenarios.

The Inheritance (Provision for Family and Dependants) Act 1975

The law in England and Wales recognises that as a result of the busy and complex lives we lead, and the uncertain nature of death, that many people may be left in a difficult position if a loved one has passed and they have not been provided for financially under their estate.

Certain individuals in such circumstances are therefore able to bring a claim under the Act for what is referred to as claim for ‘reasonable financial provision’. However, such claims are not available for everyone to bring, but rather the Act sets out a prescribed list of classes of persons who are eligible at least to commence a claim (whether they will be successful is an entirely separate matter). These classes of persons are:

1. Spouses and civil partners
2. A former spouse or civil partner (provided they have not remarried or formed a subsequent civil partnership
3. A biological child of the deceased person
4. A non-biological child where the deceased person stood in the role of a parent and was treated by the deceased as a child of the family
5. Any person who was financially dependent on the deceased
6. A person who, for at least 2 years immediately before the deceased’s death, were living with the deceased in a relationship akin to marriage or a civil partnership

What is meant by ‘reasonable financial provision’?

Although a person may fall into one of the above categories, there is no guarantee that they will be successful with a claim for reasonable financial provision. It is decided by the courts on a case-by-case basis and factors such as the individual circumstances of the person claiming will be considered, along with the size of the estate. Typically, the more money in an estate, the more there is to be shared.

But what does reasonable financial provision look like?

The answer to this question depends on the category of the person making the claim.

If the person seeking financial provision is a spouse or civil partner (not former spouses or civil partners), the test is, what is reasonable in all the circumstances, and not just what is needed for basic maintenance. The way the courts typically approach this is by considering what would have been fair for the spouse or civil partner if the marriage or civil partnership ended in divorce, as well of course as the size of the estate.

If you a person claiming that falls into any of the other categories above, the test applied is, what is reasonable for the person claiming to receive for their maintenance i.e. their day-to-day needs.

What will the Court take into account when making their assessment?

The court will consider each case on its individual facts as these types of claims can differ significantly in their facts and the circumstances surrounding the person claiming. However, the court will typically include in their consideration the following:

• The financial resources and needs of the person claiming, both at the time of making the claim, and their likely resources and needs in the future (this is important as a subsequent claim cannot be brought later if their circumstances change).

• The financial resources and needs of any others, including beneficiaries of the will or people who stand to benefit under the rules of intestacy, as well as anyone else who is bringing a claim for reasonable financial provision under the Act.

• The size and nature of the estate.

• Any obligations and responsibilities the deceased had towards the person claiming.

• The physical and mental condition of the person claiming.

• Any other factor the court considers relevant to the individual case which could for example include the way a person was maintained by the deceased before their death.

What do the courts view as day-to-day maintenance?

Unlike for spouses and civil partners whereby the courts view what is reasonable in all the circumstances, rather than day-to-day maintenance, everyone else (save perhaps for unmarried couples which we deal with in a separate blog) if they are successful with their claim are looking at receiving the financial provision needed for their day-to-day maintenance, subject to the estate being large enough to provide for it.

Maintenance does not extend to funding a person’s particular lifestyle or to allow a claimant to live a lifestyle they were living prior to the deceased’s death. Rather, maintenance is what is considered by the court as being necessary to meet a person’s essential needs which can include their housing needs, food, utilities, clothing and basic living costs.

If a person cannot maintain a lifestyle that exceeds their means, the court expects them to live within their means, rather than making an increased award to fund the more expensive lifestyle. However, what one person’s essential needs are may differ significantly to another’s and this is why cases are assessed on a case by case basis rather than the awarding of pre-defined maintenance awards.

Here at Best Solicitors we have a wealth of experience in assisting both claimants and defendants in relation to claims for reasonable financial provision. Our solicitors have extensive experience helping clients challenge a will and pursue reasonable financial provision. We understand that often there are a lot of emotions involved, relationships that are broken or breaking down with relatives, and it can be difficult to know how to move forward. If you would like to get in touch, please simply click the button below.