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Contesting Probate Where There Is No Will

Please note this article was edited on 26 July 2023 to reflect that the amount of the statutory legacy increased.

 

When a person dies without a Will, this can cause considerable problems as they will be considered to have died as an intestate person.

The rules of intestacy only allow married partners, civil partners, or close relatives to inherit from the estate. This means that other persons who may have otherwise inherited, had the deceased individual left a Will, will not be entitled to receive anything.

Here we discuss some of the aspects surrounding contesting probate where there is no Will, including what the rules of intestacy are, the drawbacks of an estate being distributed under the rules of intestacy, whether it’s possible to contest an estate with no Will, what the Inheritance Act is, who can claim and how the final decision is made.

What are the rules of intestacy?

The rules of intestacy allow the families of loved ones who have passed away to still inherit from their estate even where a valid Will was never created.

If the deceased person was married or in a civil partnership at the time of their death, the estate was valued above £322,000, and there are living children, grandchildren or great grandchildren, the spouse or civil partner will inherit the following:

  • All personal possessions of the deceased
  • The first £322,000
  • Half of the remaining estate above £322,000

Where there are no surviving children, the spouse or civil partner will inherit the whole estate.

Some other rules of intestacy include:  

  • Children’s share of the estate will be equally divided between the deceased’s other children
  • Grandchild or great grandchildren cannot inherit from the estate unless their parent or grandparent died before the intestate person, their parent is alive when the intestate individual dies but dies before they reach the age of 18 without having married or entered into a civil partnership

Other relatives can inherit, but it depends whether there are surviving spouses/civil partners, children, grandchildren, and great grandchildren.

What is the drawback of an estate being distributed under the rules of intestacy?

One prominent problem with the rules of intestacy is that, even though the deceased individual may have intended to have left their estate with a particular person, if they were not directly related to the deceased, they have no right to inherit. This includes individuals, such as:

  • Unmarried partners
  • Same-sex partners
  • Relations through marriage
  • Close friends
  • Carers

Can you contest an estate with no Will?

Contesting probate with no valid Will can be difficult, as there is no Will to back the claim. However, it isn’t impossible to do so. If you are unhappy with how the estate is due to be distributed under the rules of intestacy, it is possible to contest the estate via a claim on the Inheritance Act.

What is the Inheritance (Provision for Family and Dependants) Act 1975?

The Inheritance (Provision for Family and Dependants) Act 1975 allows certain individuals to make a claim on the deceased person’s estate where ‘reasonable financial provision’ was not made for them under the terms of the deceased’s Will or under the rules of intestacy.

Who can claim under the Inheritance Act?

There are a number of individuals who can make an Inheritance Act claim, including:

  • The spouse or civil partner of the deceased
  • A former spouse or civil partner of the deceased (this person cannot have married or entered into a new civil partnership)
  • Children of the deceased
  • Any person who, in relation to any marriage or civil partnership the deceased was involved with, was treated as a child of the marriage or civil partnership
  • Any person who was cohabiting with the deceased for at least two years prior to their death
  • Any person who, prior to the death, was financially dependent on the deceased

While the act does make it possible for certain individuals that are not directly related to the deceased to make a claim on the estate, there are still other persons who are not directly related to the deceased that are unable to inherit even though they may have been in a relationship with the deceased or a close friend.

How will the court decide if the claimant has reasonable financial provision?

The court will make the final decision as to whether the rules of intestacy have made reasonable financial provision for the claimant. Some of the considerations they will make include:

  • The current and foreseeable future financial needs of the claimant
  • The current and foreseeable future financial needs of any other claimants, if applicable
  • The current and foreseeable future financial needs of the estate beneficiaries
  • Any obligations and/or responsibilities the deceased person had towards the applicants and/or estate beneficiaries
  • The size and nature of the estate
  • Any mental or physical disabilities of the applicant or beneficiaries
  • Any other essential conduct
  • The age of the claimant (if applicable to the claim)
  • Duration of the marriage or civil partnership (if applicable to the claim)
  • Contributions the deceased person made towards the family’s welfare (if applicable)

Get in touch with our contentious probate solicitors in Chichester, Fareham and Havant

If you need support to resolve a contested probate dispute, our contested probate solicitors are on hand to lend their expertise.

You can contact your local Glanvilles office in Chichester, Fareham or Havant or use the contact form below, and we will get back to you quickly.