Have you been provided for on the death of a family member?
When someone dies that we have cared about deeply we sometimes forget what rights we have and what action we can take either on behalf of ourselves or children who have been entrusted into our care.
If you (or a child who is now under your care) were dependent on the individual who has died and there is no will or the will does not provide for you there is a very limited time during which you can take action to try to remedy the position.
It is therefore important that if provision is not made you contact Lemon & Co as soon as possible. Lemon & Co understand the position you find yourself in and can give practical advice at a time when it matters most.
There is only a period of six months from the date of Grant of Probate (if the deceased had a will) or Letters of Administration (if the deceased died without a will) during which you can make an application to the court. The application is for provision under the Inheritance (Provision for Family and Dependants) Act 1975 "the Inheritance Act".
To make an application you must fall into one of the following categories; spouse, former spouse who has not remarried, cohabitee, child, someone treated as a child and someone who immediately before the deceased's death was being maintained wholly or partly by the deceased. This later category for example would cover a nephew who was having his university fees paid by the deceased as he could not afford them himself.
As long as the deceased did not reside somewhere other than England and Wales and intended to remain in that country you are able to make an application for maintenance for yourself, or the child in your care if reasonable financial provision has not been made. The level of provision is higher than simple maintenance if you are the spouse of the deceased.
One point to consider when making an application is what is in the deceased's estate. Their house is usually the largest asset. Did they own it solely or with someone else? If it is jointly owned often it is owned on the basis that the deceased's share of the house passes automatically to the joint owner outside the will or rules of intestacy. There are other times when there will be separate shares in the house so it is important to work out how it is owned.
Do you know whether there is an insurance policy, which will be paying off any mortgage on the house either in full or part? If it will then there will be a substantial amount of equity in the property. Also does anyone currently live in the house?
If the house will pass directly to another person, such as a partner, outside the will or the rules of intestacy you need to also request in your application under the Inheritance Act that the deceased's share of the house is brought into the deceased's estate.
You have to be particularly careful if the individual for example to whom the house has passed is going to sell it. If this is going to take place before the court can make a decision on your application you will need to ask the court to stop the individual selling the house by obtaining an injunction.
For this reason it is important to obtain advice on the strength of your claim before any action is taken. If you think the person is going to sell the house contact Lemon & Co immediately for advice before it is too late.
When you are in such a distressing situation taking legal action is often the last thing you want to do. However, as there is a time limit of six months please contact Lemon & Co if you feel you (or a child in your care) has not been provided for. We understand your position and can advise you on the best way forward at what is a very emotional time.
This article gives a general view and cannot be relied upon in any particular case. The need for specific legal advice must always be considered. For further information, contact Catherine Green by email on catherine.green@lemon-co.co.uk or alternatively, please visit our website at www.lemon-co.co.uk for articles on other legal issues.
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<p><strong><a href="http://www.lemon-co.co.uk/article_family-member-death.php">Have you been provided for on the death of a family member?</a></strong><br />
When someone dies that we have cared about deeply we sometimes forget what rights we have and what action we can take either on behalf of ourselves or children who have been entrusted into our care...</p>