People who have not been sufficiently provided for in a will, or have been cut out entirely, often consider claiming from the estate. In some cases there is a right to claim ‘reasonable financial provision’ from the estate.
The court has the power, under the Inheritance (Provision for Family and Dependants) Act 1975, to make changes to a will. It can order that you should inherit if you have not been left as much as you need, or have been cut out of the will entirely. What if there is no will? The court can order that you should receive a share of the estate then too.
Am I Eligible To Make A Claim?
Claiming from an estate under the 1975 Act is possible for the following people:
– The spouse or civil partner of the deceased.
– An ex-spouse or civil partner of the deceased. However this is only if they have not remarried and did not receive a final financial settlement.
– Someone who was living in the same household as the deceased as a spouse or civil partner. However they must have done so during the whole 2-year period immediately before the date of death.
– A child of the deceased of any age (including illegitimate and adopted children, and someone treated by the deceased as a child of the marriage or civil partnership).
– Someone who was maintained wholly or partly by the deceased immediately before his or her death (except paid domestic staff, etc.).
What Are The Criteria For Making A Claim?
The court takes a number of factors are taken into account when deciding if someone has a valid claim. The court looks at their financial resources and needs, and those of other applicants and the beneficiaries; the obligations and responsibilities of the deceased; the size and nature of the estate; their age; the duration of the marriage (if applicable).
Other factors are the claimant’s contribution to the welfare of the family of the deceased. This includes any contribution made by looking after the home or caring for the family.
What sum or share of the estate might a claimant be awarded when claiming from an estate? It is ‘such reasonable financial provision as is necessary for their maintenance’, to the extent that the estate can provide it.
However, the surviving spouse or civil partner of the deceased is entitled to more. They can receive such financial provision as is reasonable in all the circumstances, ‘whether or not that provision is required for his or her maintenance’.
How Do I Make A Claim?
You or your solicitors should write to the executor/administrator of the estate. You should set out a claim for reasonable provision from the estate. If no agreement can be reached, ultimately it may be necessary to bring court proceedings. In practice, most claims are settled before or shortly after the issue of proceedings.
But be careful about the time limit – any claim under the 1975 Act must be made within six months of the issue of the grant of probate.
It is important to take advice about a particular set of circumstances. Call us today to discuss your situation and how we can help.
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