Who Is Entitled to Make a Claim on an Estate during Probate?

26 June 2019

After someone dies, certain individuals have a legal right to make a claim to the estate if they feel that they haven't been adequately provided for in the deceased's will. These individuals include the deceased's spouse and their children, amongst others.

The Inheritance (Provision for Family and Dependents) Act 1975

In England and Wales, people are free to make a will and name whoever they wish as the beneficiaries of their estate. There is no requirement for certain family members or dependents to be provided for in a person's will. This is called 'testamentary freedom' and this is something that doesn't apply in all countries.

To balance out this freedom and ensure that dependents are still adequately provided for, certain individuals are entitled to make a claim on an estate during probate. This is set out under the inheritance (Provision for Family and Dependents) Act 1975.

This law states that the following relatives of the deceased can make a claim for 'reasonable financial provision':

  • wife, husband or civil partner
  • former wife, husband or civil partner (providing they haven't remarried)
  • child (regardless of their age)
  • someone who they treated as a child (i.e. stepchild or former stepchild)
  • someone who was living with the deceased (and their spouse) for the two years leading up to the death
  • any person (not mentioned above) who immediately before the death was financially dependent on the deceased

Are Claims on an Estate Automatically Agreed?

No, claims are not automatically granted once they have been made by an eligible individual. Whether or not the claim will be granted will depend entirely on the circumstances of the case.

The Court will consider a number of factors when considering a claim on an estate. First they will consider whether the will makes 'reasonable financial provision' for the individual. If the court decides that the answer to this is 'no' then they will decide whether they should intervene to award this provision from the estate. If they think that this is the right thing to do, the court must then decide what type and value of provision it is appropriate to award.

When Can a Claim Be Made on an Estate?

There is a strict time limit within which an eligible individual can make a claim on the estate. This is six months from the date that the grant of probate was issued. For this reason, executors are advised to wait until this period has lapsed before distributing any of the estate to the beneficiaries.

The court does have authority to extend this deadline in some cases. In order to get an extension, a formal application will need to be made to the court, seeking their permission. The court will decide whether or not to grant this extension. They will consider the merits of the claim, the reason why the claim is being made outside of the 6 month timeframe and what has happened during and since this time. They will also look at whether negotiations began within the time limit and to what extent the Estate has already been distributed.

So, as you can see, making a claim outside of the six month timeframe is likely to be challenging, so it's important to lodge any potential claim as early as possible. If the deadline is missed, then the claimant may no longer be able to make a claim.

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