Contentious Probate FAQs

Contentious Probate FAQs

When should a claim be made?

As soon as possible!  It is normally necessary for an application to the Court to be made within 6 months of the grant of probate.  Whilst the Court does have discretion to extend this time period, exceptional reasons will need to be demonstrated to support the application.  This could happen if, for example, a potential applicant was out of the country travelling and were completely unaware that the deceased had passed away or if an executor had applied for probate but misled the potential applicant into thinking that they were not going to do so until the potential claim had been considered without recourse to litigation.

Who pays the costs for the application?

If successful, the Court can order that the costs of the application are paid out of the estate.  If the assets in the estate are limited, this can mean that the beneficiaries receive less than they may consider would have been “reasonable provision” under the Act.  If the application is unsuccessful, the claimant will normally have to pay both their own costs and the costs of the estate.  This is another reason why it is essential to have expert legal advice before bringing any claim to ensure that the claim is advanced correctly and has the best prospects of success.

What if the beneficiaries agree to an alternative arrangement?

Frequently the potential beneficiaries are able to reassign the assets themselves without the necessity to ask a Court to intervene, however there are rules restricting when this can be done and there may be issues regarding potential tax consequences.  Therefore, even if you believe that you can “sort it out” between yourselves, legal advice should still be considered to “sign off” on any proposal and ensure there aren’t any unintended implications. 

These provisions should also be considered if you are considering making a will that you anticipate may be controversial when the provisions become known after your death.  There are steps that can be taken to try and protect your wishes and inform a Court why the legacy for certain potential claimants is limited or even non-existent, whilst maintaining privacy and discretion on what may be very personal issues. 

We hope the Contentious Probate FAQs have provided the answer you are looking for. Please do not hesitate to contact us, as whatever the Inheritance Act issue, Winston Solicitors have the expertise to help you. 

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