What’s the difference between non-contentious and contentious probate?
What is probate?
Probate is used to describe the legal and financial processes involved in dealing with the property, money and possessions of a person who has died. These are also referred to as the assets.
Before the next of kin or executor named in the will can claim, transfer, sell or distribute any of the deceased’s assets they may have to apply for probate.
This is a legal process which is often needed when a person dies. It gives an individual, or a group of people, the legal authority to deal with a deceased person’s property, money and possessions.
When probate has been granted through a Grant of Probate or Letters of Administration the next of kin or executor can start to deal with the deceased person’s assets in accordance with their will. If the deceased died without a will, the law will determine who should receive everything.
What is contentious probate?
Contentious probate is a legal process where a person disputes the validity or the interpretation of the deceased’s will.
It usually occurs when someone feels they’ve been unfairly left out of a will, or hasn’t received what they believe they are entitled to.
In essence it calls into question the validity or the interpretation of what is believed to be the deceased’s last will.
What is the process involved in probate?
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Finding the will:
The first step is to go through the deceased person’s paperwork to find the will, or you may need to request the document from their solicitor or bank. In cases where there isn’t a will the next step will be tracking down a next of kin who will take on the role of administering the estate.
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Administering the estate:
This involves:
- Forwarding copies of the Grant of Representation to the deceased person’s bank and other asset holders.
- Advertising for any creditors with outstanding debts owed to them by the person who has died.
- Liquidating the assets to provide funds to pay debts, taxes and the beneficiaries of the estate.
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Applying for the Grant of Representation.
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Completing the probate application form.
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Completing the inheritance tax forms for HMRC also providing valuations of the deceased’s assets and calculating how much tax there may be to pay.
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Sending these forms and relevant fees to the Probate Office.
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Swearing an oath that all the information provided is correct to the best of your knowledge, that you are entitled to take out the grant and that you will administer the estate in accordance with the law.
Preparing estate accounts:
Drawing up financial accounts which show all the transactions coming into and going out of the deceased’s estate.
Distributing the assets to the beneficiaries as highlighted in the will, or as deemed by law if there is not a will.
Who does contentious probate impact upon?
What is the process involved in contentious probate?
Once you’ve ascertained that you are able to bring forth a contentious probate claim you need to work out on what grounds you can contest the will. This may be:
- Fraudulent or forged wills:
If there is a reason to suspect that the will was either altered or forged, then it is a valid ground to contest the will.
- Lack of testamentary capacity
One of the criteria for a person to write a will is that he or she must be of sound mind. If it can be proven that the person was not of sound mind then that forms a valid ground for contesting the will.
- Undue influence
A will must be written freely by a person but if it can be proved that the contents were coerced then this can be a valid reason to contest the will.
- Incorrect execution of the will
This happens when the executor of the will does not do it in accordance with what was stated in the will.
- Finally, if a will does not comply with the Wills act 1837 then it is invalid in the eyes of the law.
When should probate be stopped?
It is often easier to contest a will before probate is granted or when a grant of representation is issued, meaning before the executor can distribute the assets of the deceased.
To stop a grant of representation from going ahead, you can lodge a caveat with the Probate Registry which will remain in force for six months from the date it is entered. A caveat gives you time to decide if you are going to dispute the will – and it gives you time to discuss your case with a solicitor.
The sooner the will is contested the better, as the executor should be placed on notice before the inheritance is distributed.
Who can apply for probate?
If a will exists and you’re named in that will, or in an update to the will (a ‘codicil’), as an ‘executor’.
If the person did not leave a will it’s the ‘administrator’ who deals with the estate. You can apply to become the estate’s administrator if you were the deceased’s:
- Spouse (husband or wife) – even if you were separated
- Civil partner
- Child
To apply, you follow the same steps as you would if you were applying for probate.
You’ll receive Letters of Administration to prove you have the legal right to deal with the estate
Who can apply for contentious probate?
For someone to be able to launch an inheritance claim they must fit the description of persons who can launch a claim as stated in the 1975 Inheritance (Provision for Family and Dependants) Act, Section 1. This includes:
- The spouse or civil partner of the deceased
- Child of the deceased
- Stepchild of the deceased
- Dependant of the deceased
- Someone who lived in the same home as the deceased as if they were a married couple or civil partners
These people can make an application on the grounds that the will did not make ‘reasonable financial provisions’ for them.
If you feel you’ve got a case for contentious probate or have any other questions regarding probate and making a will then you can contact us in confidence.
