Financial Assistance from an estate

Terms used in this document

Personal representative in this document means the executor of the estate of the person who has died if s/he left a will, or the administrator of her/his estate if s/he died without making a will. Generally anyone can be appointed an executor, for example, a friend, unmarried or married partner, civil partner or relative. There are, however, strict rules about who can be an administrator of an estate where there is no will. These limit the role of administrator to the married partner, civil partner or certain close relatives of the person who has died. This means that the administrator is often also the nearest surviving relative of the person who has died. The partner of the person who has died cannot be the administrator of her/his estate unless the couple are married or civil partners.

Applying for financial help

Someone may wish to apply for financial help from the estate of the person who has died. S/he may wish to do this because s/he is not entitled to receive anything from the estate either under a will or where the person died without making a will.

There are two procedures which can be used:-

If someone wants to apply for financial help from a person's estate s/he will need to seek the advice of a solicitor. They may be able to get help with legal costs under the legal help scheme (green form scheme in N. Ireland).

Claiming under the statutory inheritance rules

The Inheritance (Provision for family and dependants) Act 1975 and the Inheritance (Provision for family and dependants) order (NI) 1979, entitles certain people to apply to court for reasonable financial provision. They can do this where, because of the terms of the will, or because a will has not been made, they have not been provided for in the estate of a person who has died.

In order for the inheritance rules to apply, the person who died must have had her/his permanent home in England, Wales or N. Ireland.

Who can apply

The following clients can apply for financial provision from the estate of the person who has died:-

What is reasonable financial provision

Before a court will make an order for financial provision, it has first to consider and decide that the person who died failed to make reasonable financial provision for the client. What is reasonable varies according to the applicants relationship with the person who died:-

Where the court is looking at a maintenance requirement it will consider the circumstances in the same way as when considering maintenance on divorce, dissolution or separation.

How the court will decide

The inheritance rules set out factors which the court must consider when deciding whether reasonable financial provision has been made, and if not, when deciding what provision to order (see the paragraph below). If the claim is from a cohabiting partner, there are additional factors which the court must take into account.

The factors to be considered in all cases are:-

The additional factors which must be taken into account when the claim is from a cohabiting partner are:-

Resources available include such things as earnings capacity and available social security benefits.

Orders that can be made

Where a court considers that reasonable financial provision has not been made for the applicant, it may order one or more of the following:-

Orders for periodical payments are usually made for a set length of time, normally running from the date of death, date of judgment or from the end of twelve months after the death. Orders do not automatically end on remarriage or registration of a new civil partnership, although courts can decide to make this part of the order. Similarly orders for the benefit of children do not automatically end on marriage, forming a civil partnership or reaching 18. Again the court can decide to do this. Orders made for the benefit of a divorced or separated married partner, or former civil partner, do end automatically on remarriage or registration of a new civil partnership.

Orders for periodical payments can be made payable to the mother or guardian of a child for the child's benefit.

This is a complex area of law and the advice of a solicitor should be sought if you are thinking of applying for financial assistance from an estate.