Contentious probate

This will vary depending on the individual circumstances of your case. An executor has a duty to act in the best interests of the beneficiaries and to act in timely manner, and so they should pay your entitlement as soon as reasonably possible. However, this will vary depending on the size, nature (eg there may be property that needs to be sold) and complexity of the estate in question.

Before an estate can be administered, a grant of probate or letters of administration needs to be issued – and this can take several months. Following this, steps can then be taken to liquidise the estate assets, pay debts, taxes, and fees before distribution. If the estate is large and taking a long time to administer, it may be possible to seek an interim distribution.

An executor isn’t bound to make distributions from the estate in the first year after the deceased died, but after that time beneficiaries are entitled to interest on any outstanding legacies.

Where you believe that an executor is not performing their duties to an adequate standard, it may be possible for you to request their removal. This will require a court order and you must have valid grounds for requesting removal. For more information on how we can help you remove an executor, visit our trust disputes page.

There is no such thing as a common law spouse, even if a couple have been living together for a long time and/or have children together. Under the intestacy rules (see below), a partner has no automatic right to inherit. However, they may be able to make a claim against their deceased’s partner’s estate under the Inheritance (Provision for Family and Dependants) Act 1975 or for a beneficial interest in any shared property. As the position can be complicated it's sensible to seek specialist legal advice as soon as possible.

These are the statutory rules that apply to the administration of an estate where the deceased died intestate, ie without making a will. In such circumstances, their estate will be administered in accordance with the intestacy rules valid at the date of death. The rules specify how the estate should be divided between family members depending on the deceased’s circumstances (eg whether they were married, had children etc). 

The starting position for costs awards in probate and trust claims is exactly the same as for other litigation – costs are at the discretion of the court. Generally the “loser” can expect to pay, but the court can make a different order. Over the years, the courts have come up with a number of special circumstances in probate and trust claims which are likely to lead to a different outcome to “loser pays”. These have mainly been in order to protect the “innocent” in probate disputes, such as executors or beneficiaries who reasonably take some steps to involve the court in connection with a disputed will but ultimately are unsuccessful.

Examples of these “special circumstances” include:

• Where a party issues a claim seeking the court’s formal approval to a grant of probate (known as proving a will in solemn form), the defendants have the choice between a specific challenge to the will, or the passive approach of simply stating they require it to be proved in solemn form. If the former, they are at risk on costs; if the latter, they will not usually have costs ordered against them unless there was no reasonable basis for the court to investigate the will.
• Where the testator or the residuary beneficiaries were the cause of the litigation, costs will usually be paid out of the estate. This reflects the fact that the estate comprises the testator’s assets which would be available to meet a costs award against him if he were alive; and that it is proper for those residuary beneficiaries who are responsible for an unsuccessful challenge to have their share of the residue reduced.

In extreme cases, costs can be ordered directly against third parties, such as the person responsible for drafting a will which contained an error or even their insurers.