Inheritance claims against an estate when someone dies are actually quite common, but they are also not easy. So, who can make a claim, when and how? Rachel Burnett answers some FAQS
Can someone claim against a person’s estate when they die?
In short, yes.
If a person who feels that “reasonable financial provision” was not made for them by a deceased person, they can make a claim against the estate.
The term “reasonable financial provision” is subjective to the individual and their relationship with the deceased and will be decided by the Courts. The Inheritance Act provides guidance as to what factors the Court should consider and it is up to the claimant to show the Court that they have not been left a sum sufficient to meet their needs.
A person can also make a challenge if they think a Will may be invalid for lack of testamentary capacity or because it was procured by undue influence of a third party.
Who can claim against an estate?
Usually, only immediate family, or those very close to the deceased. Any of the following can make a claim against your estate;
- spouse of the deceased;
- former spouse who has not remarried;
- child of the deceased;
- a person (not being a child of the deceased) who in the case of any marriage to which the deceased was at the time a party, was treated by the deceased as a child of the family in relation to that marriage;
- a person who immediately before the death of the deceased was being maintained either wholly or partly by the deceased.
- Someone who lived with the deceased for at least 2 years before their death (but not as a paying guest)
Does it make a difference if there is a Will?
Yes, if someone dies without leaving a valid or effective Will then they have died ‘intestate’. In this scenario the law of rules of intestacy dictate who can inherit and dictates an order of priority regarding their share of the deceased estate.
If there is a valid Will, then there is full ‘testamentary freedom’, meaning that anyone has the right to leave their assets as they wish and there is no legal obligation as to who someone includes as a beneficiary.
How long do you have to make a claim for inheritance?
All claims in respect of “reasonable financial provision” must be made within 6 months of the issue of the Grant of Probate or Grant of Representation. Applications made after the 6 month deadline are likely to be rejected.
The courts have allowed applications to be made out of time but only when it is in the ‘interests of justice’ to do so.
How can I guard against someone making a claim again my estate in my Will?
You want to be mindful when preparing your Will of any potential claims that could be made against your estate following your death. At THP Solicitors, we will discuss your circumstances and your estate and consider if there is any risk of a claim being made and advise accordingly. It maybe that there is little risk and no further action is needed or there may be a risk of a claim in which case we talk you through your options.
How we can help
Please contact our Wills, Trusts & Estate Administration team to see how we can assist on 0118 975 6622 (Lower Earley office) or 01491 570900 (Henley-on-Thames office) or send us a confidential email to office@thpsolicitors.co.uk