If you have recently lost a close relative, or have been named executor of their estate, it is important to have a basic knowledge of probate law in order to understand and implement your rights lawfully and effectively. This guide will provide you with a brief summary of the rules and instances for when claims against an estate can be made.
If you make a Will, you can give your estate away in whatever way you think fit. There is an exception to this however. The Inheritance (Provision for Family and Dependants) Act 1975 provides protection and allows a spouse, children and other dependants to claim against an estate for dependency in the event of not being included in the Will. The Court needs to consider whether the deceased left a fair share of the family assets. This is assessed depending on the overall circumstances and the value of the estate.
If a spouse was divorced from the deceased, it is unlikely they will succeed with a claim against an estate if the Divorce Court has already dealt with the financial arrangements. If the spouse has remarried then they will not be able to make a claim against an estate.
In order to claim against an estate, children must have been maintained by the deceased prior to death. If they can prove this, they are entitled to reasonable provision for their maintenance. This does not include a share of the family assets.
These include dependants who were partly or wholly maintained by the deceased prior to death. This includes common law wives and mistresses. If they can prove their dependency to the deceased, they may also be entitled to reasonable provision for their maintenance. This does not include a share of the family assets.
A claim against an estate must be brought within 6 months of a Grant of Probate being issued. The Court does have the power to admit late applications in exceptional circumstances however. To prevent an estate being distributed, a caveat can be lodged which prevents the Grant of Probate from being issued for 6 months. Alternatively a Standing Search can be made to obtain details of every Grant of Probate issued in the past 12 months and in the next 6 months.
It is expensive and time consuming to make a claim against an estate and expert legal advice is strongly recommended. Please call us on 01536 276300 for a free no obligation chat and receive a quote.
Probate & Estate Specialists
I’m Adrian Chambers and specialise in Probate and Estate matters. We aim to provide our clients with an outstanding legal service.
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