How to make a claim on an estate: a short summary of the legal process
Analysing your claim
- Challenge to the validity of a will;
- Claim under the Inheritance (Provision for Family & Dependants) Act 1975;
- Proprietary/promissory estoppel; and
- Debt claim against an estate.
It is therefore essential to get a clear idea of the type of claim you wish to pursue. You can contact us for a free case assessment. This will allow us to help determine what claim on the estate is likely to be most appropriate for you.
Do I need a solicitor to make a claim on an estate?
There is no obligation to retain a solicitor toi make a claim on an estate and in cases where the value is modest, it is often not commercially viable to use a solicitor. However, in larger value cases where difficult issues of law arise many people do appoint a specialist inheritance solicitor. If funding legal; costs is an issue for you then we may be able to assist with on a no win, no fee basis. We will be happy to consider whether your claim is suitable for this type of funding if you contact us for a case assessment. If we are able to assist you then we will consider all the following stages in the legal process.
Does urgent action need to be taken?
It is important to consider early on whether any urgent action is necessary to protect your claim.
Protective action could include:
- Issuing court proceedings immediately if the limitation date has expired or is about to expire;
- Entering into a limitation standstill agreement;
- Demanding that there be no distribution of the estate; and
- Entering a standing search or caveat at the Probate Registry.
Evidence gathering to support your claim on an estate
It is important to gather evidence and information required to pursue your claim. We may obtain this from you directly or by contacting other parties, such as an executor, a solicitor who prepared a will or a hospital's medical records department.
Examples of evidence that may be obtained include:
- Valuation reports;
- Copies of wills;
- Solicitor's will preparation files;
- Witness statements;
- Financial information; and
- Medical records .
Before beginning court action
Unless your claim has a very short limitation period (or limitation has already expired) we would not usually recommend commencing court action straight away. Many claims are settled well before reaching court. This can be beneficial for all parties, as once a claim goes to court legal costs will increase considerably and this reduces the value of the estate available for distribution. It gives the parties the opportunity to set out their case, understand the legal issues and explore the possibility of a negotiated settlement.
Action that we may take prior to issuing the claim in court includes: -
- Sending a "Preliminary Notice" to the Executor(s) and Beneficiaries;
- Serving a Letter of Claim;
- Considering the Letter of Response;
- Entering into "Without Prejudice" discussions;
- Putting forward settlement offers; and
- Taking part in mediation or any other suitable form of Alternative Dispute Resolution.
Issuing your claim on an estate in court
If the case cannot be settled (or if the limitation date of your claim is due to expire) we may have to issue court proceedings.
We will carefully prepare the court documents, including a "Claim Form" and detailed "Particulars of Claim". This is then sent to the court and served on all defendants in your claim.
Following service of your claim (but before your claim reaches a trial) we will be required to do a number of things such as: -
- Disclosing key documents;
- Exchanging witness statements; and
- Ensuring compliance with the Civil Procedure Rules.
Eventually the court will set a date for the trial, though throughout this process the parties are free to negotiate "off the record" and reach an out of court settlement.
Trials are uncommon. This is because they are expensive and the parties are therefore motivated to seek a solution, even if it involves an element of compromise. However, we always have to prepare a claim on basis that it will go to trial, just in case it is one of the rare ones that do go all the way.
After trial or settlement
Once a settlement has been reached or following a successful trial, we will conclude your claim on the estate by ensuring your opponent pays the agreed amount along with any legal costs they are liable for. Examples of action that we may take at this stage are:
- Drafting a settlement agreement;
- Preparing a deed of variation;
- Monitoring payment and accounting to you; and
- Taking enforcement action for non-payment
Please remember; every case is different. Because of this your claim may not exactly follow this outline and other steps not listed may be required.
How we can help
If you have found our guide on how to make a claim on an estate helpful and would like to take things further then you can call our free legal helpline on 0808 139 1599. You can also send us details of your case by email at firstname.lastname@example.org.