My father died in the fall of 2024. According to his will, me and my sister have half of the house.
If his partner dies, are we entitled to part of his money and assets?
We’re not sure what’s in her will. She is still alive and living in the house. They were not married.
The will mentions residual funds. Could you please tell me what that means? Probate has been obtained for half of my father’s estate.
Inheritance house: What happens if your partner still lives there after your parent dies?
Tanya Jefferies from This is Money replies: It is common for someone who shared a home with a partner to leave only half of their share to their children.
We asked a lawyer with experience in this area to explain what you need to check regarding your right to inherit part of this property and what sensible steps you can take now.
Roman Kubiak, partner and head of private asset litigation at law firm Hugh James, responds: The starting point is to check your father’s will and ownership documents, as property is held in co-ownership as ‘tenants in common’ or as ‘tenants in common’.
In a joint tenancy, and assuming neither your father nor his partner has ‘breached’ the agreement, expressly or implied, your father’s share of the property automatically passes to any surviving co-owner(s), regardless of what is stated in the will.
For example, breaking an agreement would occur if they both made a will to deal with their respective shares.
Roman Kubiak: Owning part of a property doesn’t necessarily mean you can immediately access that part
Since his will states that you can both share half of the property, it is more likely that the property will be owned by ‘tenants in common’, meaning each owner has a separate share that he can leave to his heirs, but I would check the title of the land registry to confirm.
Assuming it was held as tenants in common, and subject to any restrictions in the will and the rights or interests granted to the spouse, that share passes to you and your sister regardless of what the spouse himself says in his will.
Her will only governs her own share of the property and separate assets, not your father’s.
However, owning part of a property doesn’t necessarily mean you can gain immediate access to that part.
For example, the will may give the partner a ‘life interest’, which gives the right to live in or benefit from the property for life, often under a trust, with the capital passing to you on her death and provided that the partner meets the obligations surrounding the maintenance of the property.
This takes precedence over any wish to sell the property.
Despite the lack of a vital interest, the partner may resist any attempt by you to realize half of your father’s share.
In the event of a disagreement, a person can apply to the courts under the Trusts of Land and Appointment of Trustees Act 1996.
The court has wide discretion and weighs the intentions behind the trust, including the will and the purpose for which the house is held.
Consider, for example, whether it was the intention to stay at her home after your father’s death, the interests of any children living there and the co-owner’s own interests.
Courts are often reluctant to evict a long-term elderly resident, especially if there is a vital interest or if there is a clear intention that she should continue to live in the property.
As such, it would be wise to enter into a dialogue with the partner to determine their intentions, such as whether she wants to stay in the property or downsize.
Early, tactful conversations can help avoid costly legal disputes later.
Even if they were unmarried, the partner may be able to seek greater financial provision from your father’s estate if faced with the prospect of having to leave the home.
She may be eligible to make a claim under the Inheritance (Provision for Family and Dependants) Act 1975 if she was ‘maintained’ by your father or lived with him as a couple for at least two years before his death.
Such claims must generally be filed within six months of the probation period, although courts may allow late claims.
A life interest that already provides for her can reduce both her motivation and her chances of success.
The term “residual funds” in your father’s will generally refers to anything left in the estate after specific gifts, debts, funeral expenses, taxes and administrative costs have been paid.
Check who benefits from the residue and in what proportions, as it may include assets outside the home.
