Probate - Who Has a Claim to the Estate?
03 July 2015
When someone dies, their Will usually sets out how their Estate should be divided. It normally takes around 9-12 months for the Executor appointed in the Will to deal with the financial aspects of the Estate, which is often referred to as the Probate period.
If there are challenges to the Will, or the deceased has not left a Will at all and has died Intestate, then the Probate process can take much longer. So who has a claim to the Estate under the terms of the Will, and just what could you be entitled to if there is no Will?
Who is Entitled to What?
If a Will has been left, then the beneficiaries named in it will receive a share of the Estate in accordance with the last wishes of the deceased. However, there is still effectively a ‘pecking order’ of who gets what from the Estate, and just how much is available to distribute to the beneficiaries depends on what is left once all expenses have been taken care of.
The Executors in the Will firstly use the Estate funds to pay for the funeral, the Estate administration expenses and any tax that may be due. They will then settle any outstanding debts left by the deceased. Only after these liabilities have been paid can the beneficiaries claim their share of the Estate.
What if the Money Runs Out?
If after all the expenses have been paid, there is not enough money left in the Estate to cover all of the distribution to the beneficiaries then the beneficiaries may receive a reduced share of the Estate.
What if the Person Died Without a Will?
In a case where someone died without making a Will, the Estate will go to the spouse and depending on the value of the Estate, to the children as well. Intestate cases can take much longer to settle, as it can often be difficult to trace all of the beneficiaries entitled, and claims may be made during the Probate period by non-family members who were financially dependent on the deceased. The person handling the distribution of the Estate must ensure that all outstanding debts and liabilities are paid, before the Estate is distributed to those people entitled to it.
If there is no Will then there are certain legal provisions to follow, which cover the distribution of an Estate on intestacy, but things can get even more complicated if a couple have been living together, without being married or in a civil partnership.
This is one reason why Solicitors at Co-op Legal Services will strongly recommend that you make a Will, rather than leaving things to chance after you’re gone.
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