How To Make A Claim Against A Deceased Person's Estate

sarah ryan
Sarah RyanAccount Manager @ Lawhive & Non-Practising Solicitor
Updated on 25th January 2024

A person might consider making a claim against a deceased person's estate if they believe:

  • The testator lacked mental capacity when they made their will; 

  • A will is not valid

  • The testator was pressured or deceived into making or changing their will; 

  • They should have been provided for in the deceased’s will; 

  • The person made a promise they didn’t fulfill (promissory or proprietary estoppel). 

In this article, we’ll look at how you might go about making a claim against an estate and key things to consider. 

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In England and Wales, individuals have the freedom to choose who and what they want to include in their wills, as long as they have mental capacity.

There's no legal obligation for them to include family members or dependents, which is known as testamentary freedom. Unlike some countries with stricter rules (e.g. under Sharia law specific shares are mandated for family members), UK law offers more flexibility.

However, if dependents aren't provided for, they can make claims on the estate during the probate process under the Inheritance (Provision for Family and Dependants) Act 1975. This is when the deceased's assets are valued, and their estate is distributed according to their will or the rules of intestacy.

Under the Inheritance (Provision for Family and Dependents) Act 1975, only certain relatives of the deceased can make a legal claim on their estate, including: 

  • Their spouse or civil partner; 

  • Former spouse or civil partner (if not remarried); 

  • Children, grandchildren, and great-grandchildren; 

  • Parents and grandparents; 

  • Siblings and their children; 

  • Uncles, aunts, and their children (first cousins);

  • Stepchildren and former stepchildren; 

  • Anyone who lived with the deceased for at least two years before their death; 

  • Anyone financially dependent on the deceased before their death. 

How do I claim against an estate? 

Making a claim against the estate of a deceased person isn't straightforward, and can include multiple steps, including going to court if the matter progresses that far.

Establish grounds for your claim 

First, you need to know on what grounds you are making a claim on the estate. To do this, it’s best to consult a legal expert to understand if your claim has merit and it’s worth pursuing. 

You may need to get a copy of a will (if there is one) to assess your claim. You can ask the executors of the will for a copy, and they should provide it as soon as possible.

If an executor refuses to provide a copy of the will, either you or your solicitor on your behalf should let them know that failing to provide a copy of the will could prolong the process and increase legal costs, which they may be liable for if the judge rules in your favour. 

If there’s no will, you can still make a claim on the deceased's estate regardless.

Be clear on the time limits

Those who can claim from an estate have six months after probate to do so. Executors usually wait before distributing assets, but some may not know this. 

Distributing assets early without funds or insurance could make the executor personally liable. In some cases, the court may extend the deadline. 

It's often easier to claim before probate is granted and assets are distributed. Your lawyer might suggest entering a caveat to stop probate or letters of administration issuance. Without these, executors or representatives can't distribute the deceased's assets, giving you more time to make a claim. 

Start the Pre-Action Protocol

Before starting legal proceedings, both parties must exchange information and documents through pre-action protocols. These protocols aim to settle disputes amicably and simplify legal proceedings by ensuring all relevant information is shared beforehand.

If you’re considering making a claim, start by sending a preliminary notice to all relevant parties, who should acknowledge receipt within 21 days.

When you're ready to make your claim on an estate, send a letter outlining your claim to the deceased person's representatives or trustees, and ideally to every beneficiary or potential beneficiary who could be affected. Clearly state your claim, provide supporting facts and documents, and specify what you're seeking.

It's advisable to seek help from a solicitor to draft and send this letter.

Each defendant should respond to the claim within 21 days, stating their agreement or disagreement, sharing relevant facts and documents, and explaining if they need more time to respond.

The outcome of pre-action protocols will determine the next steps. Parties may send a Letter of Settlement proposing a settlement, or negotiations may begin. Alternatively, they may deny the claim. 

If the claim is denied, you can take the matter to court, although exploring ADR before doing so may be wise.

Explore alternative dispute resolution (ADR)

Probate disputes can be resolved faster and more affordably through productive conversations. If direct talks or discussions with legal representatives don't work, consider mediation. 

In mediation, a neutral third party helps guide negotiations, keeping emotions in check. It can often find solutions without going to court. 

If mediation is refused and the matter goes to court, the judge might consider this refusal when deciding who pays legal costs. So, it's wise to consider all options to avoid potential expenses later on.

Go to court 

If you can't reach an agreement through pre-action protocols or ADR, going to court might be necessary. However, you can still use ADR even after court proceedings begin if it could help resolve your claim on the estate.

There are risks involved in going to court, including the possibility of having to pay both your legal costs and those of the defendants.

To start court proceedings, you'll need to prepare a claim, usually handled by a specialist barrister instructed by your solicitor. This claim will then be served on the defendant or their solicitors.

After this, several steps follow, such as disclosing documents, exchanging witness statements, and obtaining expert evidence.

If the matter proceeds to court, the judge will consider various factors, including your resources, relationship with the deceased, estate details, any vulnerabilities, your behavior during proceedings, and your relationship with the estate. The judge will also decide who pays the legal fees in the end.

Most claims against an estate are settled out of court, either through written or face-to-face negotiations, or mediation. 

If a claim does go to court, the judge will either rule in your favour or against you. 

If your claim is successful, the outcome will depend on your court. Usually, the court may grant: 

  • A lump sum of periodic payments; 

  • Transfer of property; 

  • A lifetime right to live in a property, with the property reverting to the estate upon the applicant’s death. 

If the court rules against you, you may be ordered to pay both your costs and the other side’s costs, depending on the circumstances. Executors may also be able to have their legal costs covered by the estate before distributing assets to beneficiaries, especially if it was reasonable for them to seek legal advice.

Can you claim against an estate if there is no will? 

Yes, if the deceased passed away without leaving a will, you can still make a legal claim against the estate if the intestacy rules, which decide who inherits the deceased’s estate in the absence of a will, don’t provide adequate financial provision for you. 

In this case, your letter of claim would be sent to beneficiaries assigned by the rules of intestacy.

Can you claim against an estate on the Bona Vacantia list? 

In the UK, when someone passes away without a will, it's not always clear who should inherit their estate. If there are no known next of kin or apparent family, the estate becomes unclaimed and is added to the Bona Vacantia list.

Relatives or dependents can claim estates on this list within 12 years of administration. For estates before 1997, claims are accepted up to 30 years after death, but no interest is paid after the initial 12-year period.

Claims outside of these timeframes are not considered, and the estate goes to the Crown. To prove a claim, you'll need to provide a family tree showing your connection to the deceased, along with any other requested evidence.

How can Lawhive help? 

Making a legal claim against an estate can be complex and emotionally challenging.

At Lawhive, our team of wills, trust, and probate solicitors is dedicated to guiding you through every step of the process.

Whether you're assessing the strength of your case or negotiating with executors and beneficiaries, we're here to support you. If you're facing a claim against an estate, our lawyers can assist with that as well.

For a free case assessment and to learn more about how we can help, contact the Lawhive legal assessment team today. Our wills, trust, and probate experts are available to assist you promptly and affordably with various legal matters, from making a will to probate applications and contentious probate issues.

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