GUIDE

Is it possible to make a claim on an estate during probate?

If someone close to you has died and you feel that they have not adequately provided for you in the terms of their Will, you may have a right to make a claim on the estate. Whether or not you can do this will depend on your relation to the deceased and your individual circumstances.

When someone writes a Will in England and Wales, they have testamentary freedom. This means that they are entitled to name whomever they wish as a beneficiary and are not legally required to provide for anyone, regardless of their relation.

However, there are laws that place checks on this freedom to ensure that those who are in need can claim an inheritance depending on the closeness of their relation to the deceased. This article will explain who is entitled to make a claim on an estate and how to go about doing so.

For free initial advice call our advisors or request a callback and we will contact you.

Your guide to Probate

Part 1

Who can make a claim on an estate during probate?

Some individuals who were close relations to the deceased can make a claim on the estate if they feel that they were not adequately provided for in the Will. This is a part of the 1975 Inheritance Act, which states that certain individuals can make a claim for ‘reasonable financial provision’.

Those who can make a claim according to the Inheritance Act are as follows:

  • Spouse or civil partner to the deceased
  • Former spouse or civil partner of the deceased (if they have not remarried)
  • Child of the deceased
  • Someone whom the deceased treated as a child (such as a stepchild)
  • Someone who was living with the deceased for the two years prior to the death
  • Someone who was financially dependent on the deceased in the time before the death
Who can make a claim on an estate during probate

Part 2

How to make a claim on an estate during probate

To make a claim on someone’s estate after the grant of probate has already been obtained by the executor, you must apply to the Court. This must be done in the six months after the grant of probate has been acquired. After this six-month point, it is likely that the executor will start releasing funds to the beneficiaries, at which point a claim would complicate the process.

If you apply within the six-month deadline, the Court will have several considerations to make before they accept your claim and grant you further provisions in the Will. They will first need to determine whether you have been adequately provided for in the terms of the Will. Their decision on this matter will depend entirely on the Will and on your own personal circumstances. If they decree that you have not been adequately provided for, the Court will then need to decide whether they should intervene and what kind of provision they should make for you. If you are successful in your claim, the terms of the Will should be amended, and the executor will be legally required to honour these amendments.

If you fail to apply for a claim on the estate within the six-month deadline, it is possible to get an extension from the Court. However, your case might be less likely to succeed as the Court will need to go over a whole host of new considerations in addition to the ones above. They will need to understand why you waited so long to apply and what happened in the six months after the grant of probate was acquired. They will also need to take into consideration how much of the estate has already been divided up and distributed by the executor, as a claim launched after the beneficiaries have started receiving their inheritance can extend and complicate the entire probate process.

Provisions are not always granted, so you should thoroughly consider whether you need to make a claim on an estate and whether your case is strong enough before you spend time and energy on making an application to the Court.

How to make a claim on an estate during probate

For free initial advice call our advisors or request a callback and we will contact you.