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Intestacy Rules

If someone dies without leaving a will, this is called intestacy. There are complicated legal rules that will determine whether or not you have any rights to your home if the owner has died without saying who the house is being left to in a will. This section will give you an idea of what intestacy is and also how you can work out whether or not you have any rights to the house.

What is intestacy?

If someone dies without leaving a will (in other words, if they die 'intestate'), you may still have a right to the house under the law depending on your relationship to the person who has died. The law is complicated but it's important to realise that there are separate rules for property and also personal belongings and things like money. The legal status of your relationship will also affect your rights. Whatever situation you're in, it's important to know that you won't automatically have rights because you are living in the house.

You may have some automatic rights if:

  • you are married to or in a civil partnership with the person who has died
  • the person who has died was your mum or dad.

You don't have any automatic rights if you were living ('cohabiting') with your partner but weren't married or in a civil partnership. However, you can ask the court to give you a share of their property, including your home (see 'do I have any rights if we weren't married or in a civil partnership?' ).

The law is quite complicated and you should speak to a solicitor to find out if you have any rights.

What are my rights if I was married or in a civil partnership?

If you were married to or in a civil partnership with the person who died and they have not left a will, you will have 'prior rights' to the house. This means that you have a right to the value of the house but only up to the value of £300,000. In other words, if the house is worth £300,000 or less, then there's no problem because you will have a right to the whole property and will be able to keep living there if you want to.

If the house is worth more than £300,000 then things are more complicated and you should speak to a solicitor. If you are in this situation, it is really important to understand that you may have to move out of the house.

As a worst case scenario, the house would have to be sold although you would be able to claim your share of the sale price back. All this can take quite a long time so don't expect to get all the answers quickly. The best thing you can do if you are unsure or worried is to get legal advice as soon as you can because it could get very complicated. Don't move out of your house until you find out exactly where you stand.

If the house has to be sold, will I have to move out straight away?

If you are entitled to a share of the house, you might be able to continue living there until it has been sold although any other person who is entitled to a share of it would have to agree to this. If you are already living in the house, it might be easier to reach agreement on this. If you are not on speaking terms with the other person, ask your solicitor to try to work something out for you.

Do I have any rights if we weren't married or in a civil partnership?

If you weren't married to or in a civil partnership with your partner but you were living with them, you might have rights as a 'cohabitant'.

What is a 'cohabitant'?

The law clearly defines people who are living together but who are not married or in a civil partnership. If you're in this situation, the law describes you as a 'cohabitant'. Under the new law a 'cohabitant' is a person who is, or was, living with another person as if they were husband and wife, or two persons of the same sex who are, or were, living together as if they were civil partners.

When deciding whether you are, or were, cohabitants the court will consider various factors such as the length of time you have lived with your partner, whether you are financially dependent on each other and whether you have any children together. When deciding whether or not to make an order giving you a share of your partner's estate, the court also has to take account of various other factors such as what your partner owned (in other words, 'the size of their estate'), any other benefit you will inherit from your partner (for example the proceeds of a life policy or pension scheme), and any other claims on the estate from other people (for example from any children your partner had).

What are my rights as a cohabitant?

If you are not married to or in a civil partnership with the person who died and they did not leave a Will, you have no automatic legal right to inherit the house even if you have been living with the person in the house for a very long time.

However, you can ask the court to consider giving you something from your partner's estate. If you are going to apply to the court for this kind of order, you must do so within six months of the date on which your partner passed away. You won't be able to apply for an order after that date. It is therefore crucial that if you find yourself in this difficult situation you should see a solicitor as soon as possible.

If an order is granted in your favour, it could say, for example, that you're entitled to inherit a sum of money from your partner. The court can also make an order that transfers your home into your name. If the court makes such an order in your favour, you will become the legal owner of your home.

You can only apply for such an order if you have been living with your partner in Scotland immediately before they died. So, if you split up with your partner before their death then you have no rights to inherit their property.

It is also important to highlight that if your partner was still legally married to, or in a civil partnership, with someone else at the time they died, their spouse or civil partner will still be entitled to a share of what they owned. They will be legally entitled to a share of your partner's property even if they have been separated for a long time and you have been in a relationship with them for ages. This is a complicated area and you must seek further advice from a solicitor or law centre if you're in this situation.

If the court decides not to make an order in your favour (or if other people, such as your partner's children, are entitled to everything), there's nothing you can do about it. In these circumstances, you'll probably have to move out of your home. If you're in this situation, it can be very stressful and upsetting but help is available. Have a look at the Advice Services Directory to find help near you.

Who will get the house if the person who died had no relatives?

If the person who died didn't leave a will, is not married, in a civil partnership or living with their partner and has no children, then you will not inherit the house even if you were their closest friend. The house will probably be sold and the money will go to the government.

Scotland map Housing laws differ between Scotland and England.
This content applies to Scotland only.
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