Full Graphics | Accessibility

After death

If you are the executor

Older Lady New If you have been appointed in your partner's will to be an executor, your first task is to organise the funeral.

Your second task will be to apply to the probate registry for a ‘grant of probate’. This is the legal document that gives you power to deal with the estate.

You may choose to instruct a solicitor to do this for you. If you do, the costs will be deducted from the estate and if the job is not done properly it will be the solicitor's fault (providing the executor has made proper enquiries and been honest about all of the assets and debts of the deceased, including any life-time gifts).

If you decide to make the application personally, the probate registry will help you (with the application; they won't help with collecting and distributing the assets). It is your responsibility to track down all the assets and "liabilities" (perhaps pension or benefit payments that shouldn't have been made, or tax that is owed because of a previous miscalculation). You must also settle any inheritance tax, which is usually paid before probate is granted.

At the end of that procedure you will be issued with a single page document called a "grant of probate" (or, in the case of an intestacy, a "grant of letters of administration"). On the production of this document to banks, companies, the land registry and any other organization holding money or assets on behalf of the deceased, you will be able to request payment or transfer.

Once you have collected all the assets you must pay all the debts. If you fail to do this before you distribute the estate you may be held personally liable for any shortfall.

The next job is to distribute what is left according to the will, or according to the law if there is no will. Even if the result seems grossly unfair, as the executor you have no discretion in the matter. If the will says that the estate is to go to a relative with whom the deceased had fallen out, that is what must happen. There is no scope for the executor to decide to make a payment to a more deserving person (unless the estranged relative agrees). If you don't give the money to the right person, you are personally liable. This means that you could be made to pay them the money they are owed out of your own pocket.

Those who do decide to handle all this themselves should be aware that there are some quite complicated provisions to follow if one of the beneficiaries has already died. If that beneficiary is closely related to the deceased, his/her children will share that gift, but if not, it will go with the “residue” of the estate unless the will specifically states that the children will inherit if their parent has already died.

If you think the will is unfair

When Tim died...

Tim died without a will, leaving his partner Paula with nothing. All his property went to his sister Lara under the intestacy rules. But Lara felt that this was not fair. She agreed with Paula that instead, nearly all of the estate should go to Paula. Paula refused to take all of it, so they settled on Lara having 25% and Paula having the rest. They got a solicitor to draw up the papers.

If your partner has died and the whole of his/her estate has gone to a brother or sister he or she rarely saw, what can you do? Whether caused by a will or by a lack of one, if the estate appears to go to the 'wrong' person, it may be possible to change it by negotiation and agreement.

If all the beneficiaries are adults, the law says that they can make an agreement with other beneficiaries as well as those who do not benefit from the estate. This agreement can re-write the will or the effects of the intestacy and that agreement is then treated as a will made by the deceased.

If any of the beneficiaries are under 18, any agreement that affects what share they will have, must be approved by the court.

Making an agreement does not involve the court but all parties should to take legal advice so they have an idea of what order a court might make. In that way a solution can be achieved at a fraction of the cost and with much less stress than taking it to court.

The agreed changes must be completed within two years of the death.

If you cannot agree

If you cannot make an agreement you may have the option of taking legal action.
You should think very carefully before doing this. The words "It's not the money, it's the principal I'm fighting for" are often followed by a long and expensive battle over the money. And the costs eat into (or even eat up) the estate. It's also important to bear the emotional costs in mind. There will be a winner and a loser, and it may be very hard to get back onto friendly terms afterwards.

If you have lived with your partner for more than two years prior to his or her death, or if you were being wholly or partly looked after financially by him or her when they died, you may be eligible to make a claim against the estate under the Inheritance (Provision for Family and Dependants) Act 1975.

You must make your claim within 6 months of the grant of probate or letters of administration. Your chance of success and, if successful, the amount of your share of the estate, will depend on your circumstances, the circumstances of the others involved, and the value of the estate. There are no certainties.

Claims against the estate are not DIY territory. Take legal advice at an early stage.

If you are not eligible for legal aid you will have to find a way to finance your application. If you are successful in the proceedings the court will normally make an order for your costs to be paid out of the estate but that will, of course, reduce the estate.

February 2010

Get advice

Need help with a problem? Find advice services and solicitors near you who can help you solve your problem. Many people are able to get free help and advice.

Have we been helpful? Could you help us in return?

Advice Now Web 0033 Op

If you found this information helpful could you make a small donation to help us keep this website up and running. Just text the code ADVN22 £2 (or any amount between £1-10) to 70070 to donate to us. We are a very small charity and rely on donations, grants, and sponsorship. Alternatively, If you are a Facebook user you could share the guide you liked on your wall (there is a button at the bottom of the page) or you could post it to any relevant forums you use.

Married or not - One Plus One

Advice Now Web 0010 Op

Married or not looks at the differences between marriage and cohabitation, what your rights are, and how to raise some of the trickier issues with your partner.

One Plus One are partners in the LivingTogether project,

Tell us about yourself!

Tell us about you

We want to know a bit more about the people who use our site, to help us improve it. Can you spare a few minutes to tell us a bit about yourself in complete confidence? Take the survey here:Tell us about yourself!

Please rate this article:

In this section

If you have children under 18, have you appointed a guardian?

Links to other websites

Get Adobe Reader

Get Adobe ReaderSome documents require Adobe Acrobat Reader to view them. Download it here.

Problems Downloading? Download help