Contesting Probate Guide
When someone dies without leaving a valid will, their estate is deemed “intestate,” and the rules of intestacy dictate how their assets are distributed. In England and Wales, these rules follow a strict hierarchy, prioritising close relatives such as spouses, civil partners, and children. However, disputes can still arise, and contesting probate in such cases can be a complex process. This article provides a step-by-step guide to contesting probate when there isn’t a will.
Step 1: Understand the rules of intestacy
Before contesting probate, it is crucial to understand how the intestacy rules work. The rules of intestacy determine who is entitled to the deceased’s estate in the absence of a will. For instance:
- If the deceased was married or in a civil partnership, their spouse or civil partner inherits most of the estate.
- If the deceased has children, the spouse or civil partner will inherit the first £270,000 of the estate, and the remainder is divided equally between the spouse and children.
- If there is no spouse, civil partner, or children, other relatives (e.g., parents, siblings, or nieces and nephews) may inherit in a predetermined order.
Understanding these rules is key to assessing whether you have grounds for contesting probate.
Step 2: Identify grounds for contesting probate
In cases where there is no will, disputes may arise for a variety of reasons. The most common grounds for contesting probate include:
- Incorrect administration of the Intestacy rules : If you believe the person administering the estate (the administrator) is not following the intestacy rules or is acting dishonestly, you can challenge their actions.
- Lack of eligibility: Only certain individuals, such as close relatives or dependents, have the legal right to inherit under the intestacy rules. Disputes may arise if someone who is not eligible seeks to claim the estate.
- Dependency claims: If you were financially dependent on the deceased but are not entitled to inherit under the intestacy rules, you may contest probate under the Inheritance (Provision for Family and Dependants) Act 1975. This law allows dependents to seek reasonable financial provision from the estate.
- Mistakes in the probate application: Errors in the application for a Grant of Letters of Administration (the equivalent of probate when there is no will) can also form the basis of a challenge.
Step 3: Gather evidence
Once you identify your grounds for contesting probate, start collecting evidence to support your claim. This may include:
- Financial records: To demonstrate your dependency on the deceased or discrepancies in the estate’s administration.
- Family history: Documents that establish your relationship to the deceased.
- Correspondence: Emails, letters, or messages that indicate the deceased’s intentions regarding their estate may be relevant to a claim
Strong evidence is essential to ensure your claim is credible and persuasive.
Step 4: Seek legal advice
Contesting probate is a legally and emotionally complex process. Seeking advice from a solicitor who specialises in contentious probate cases is highly recommended. They can:
- Advise you on your rights under the law
- Help you determine whether your claim is likely to succeed
- Guide you through the procedural steps involved in contesting probate
Many solicitors offer initial consultations to discuss the merits of your case and provide an overview of the legal process.
Step 5: File a caveat
If you suspect that the administration of the estate is improper or want to prevent the distribution of assets while your dispute is resolved, you can file a caveat with the Probate Registry. A caveat temporarily halts the probate process and prevents the Grant of Letters of Administration from being issued.
The caveat lasts for six months and can be renewed if necessary. During this time, the dispute can be resolved, either through negotiation or legal proceedings.
NB : You cannot use a caveat to protect a potential dependency claim and must consider alternative options
Step 6: Attempt mediation
Before escalating the dispute to court, consider mediation. This is a less costly and less adversarial way to resolve probate disputes. A neutral third party (the mediator) facilitates discussions between the disputing parties, helping them reach a mutually acceptable resolution.
Mediation is particularly useful in cases where disputes are rooted in family tensions, as it encourages open communication and avoids prolonged legal battles.
Step 7: Initiate legal proceedings
If mediation fails or is not an option, the next step is to initiate legal proceedings. This involves filing a claim in the relevant court to challenge the probate process. The court will evaluate the evidence, hear arguments from both sides, and decide the outcome.
Keep in mind that litigation can be time-consuming and expensive, so it is essential to weigh the potential costs and benefits before proceeding.
Step 8: Comply with court orders
If the court rules in your favour, it may order the redistribution of the estate, the removal of the administrator, or financial provision for dependents. Ensure you comply with any court orders promptly to avoid further complications.
If the court rules against you, seek advice from your solicitor about whether you have grounds for an appeal.
Contesting probate without a will can be a complex and emotionally challenging process, but you don’t have to face it alone. At Judkins Solicitors, we specialise in contentious probate cases and have a proven track record of helping clients navigate disputes with confidence and clarity.
Whether you’re challenging the administration of an estate, seeking financial provision under the Inheritance Act, or resolving a family dispute, our experienced team will provide expert legal advice tailored to your unique circumstances. Visit Judkins Solicitors today to schedule a consultation and take the first step toward a fair resolution.