Contentious Probate FAQs

Contentious Probate is a wide-ranging term and includes any dispute involving a deceased’s estate. A few examples include:

• A dispute in regards to the validity or interpretation of a deceased’s will;
• A dispute between the executors and beneficiaries in respect of the administration;
• A dispute over the deceased’s place of burial;
• A dispute over the value of the deceased’s assets; or
• A claim brought by a third party against the deceased’s estate for financial maintenance.

This is a legal document which may be required prior to the administration and distribution of a deceased’s estate by their executors. If the deceased did not leave a will, the document is called a Grant of Letters of Administration and is issued to the deceased’s personal representatives.

The Grant is issued by the Probate Registry and usually takes approximately eight weeks to be received. This is on the basis that the Probate Registry does not require any additional documents or information.

In order to prevent the issuing of a Grant, you will need to lodge a caveat against the deceased’s estate at the Probate Registry.

It can often be difficult to obtain a copy of a will as it is a private document. During the lifetime of your loved one, you will only be able to see a copy if they provide consent.

Following their death, the deceased’s executors or personal representatives are able to obtain a copy of the Will in order to administer and distribute the deceased’s estate. It is their decision as to whether to share a copy with you.

Once a Grant of Probate is issued, the will along with the Grant itself become public documents. These documents can be accessed by anyone for a small fee from the Probate Registry.

The deceased’s executors or personal representatives do not have to inform you once they have applied or received the Grant. You can enter a standing search at the Probate Registry for a small fee which will remain in place for six months. If the Grant is issued during this period, the Probate Registry will notify you of this. Similarly to a caveat, you can renew a standing search.

An executor has a number of duties and responsibilities which they must fulfil as part of their role. These include:

• Collecting in the deceased’s assets
• Valuing the deceased’s assets
• Applying for the Grant of Probate (if required)
• Settling any outstanding debts or taxes owed by the deceased
• Preparing estate accounts which include all assets and liabilities; and
• Distributing the estate in accordance with the deceased’s will.

An executor can be removed if there is good reason for their removal. The court will always consider whether their removal would be in the best interests of the estate.

The following examples may justify an application for their removal:

• They cannot be located and is not performing their duties
• They sold the Deceased’s property at a deliberate undervalue
• They made distributions to the beneficiaries before settling debts
• They are of ‘bad character’ (i.e. they have been convicted of a crime)
• They have carried out serious misconduct (i.e. stealing funds from the estate)
• They are unable to perform their duties due to a physical or mental disability
• There is a conflict of interest.

Depending on the concerns, the court has the ability to order that an executor is personally liable to reimburse the estate for any losses caused by their actions.

This depends on the type of claim you wish to pursue and we would recommend that you seek legal advice as a matter of priority.

If you intend to bring a claim under the Inheritance (Provision for Family and Dependants) Act 1975 you will need to issue your claim within six months of the Grant being issued.

At Culver Law, we pride ourselves on the use of Alternative Dispute Resolution (ADR) as a source of resolution in as many cases as possible. Most disputes can be resolved by negotiation or by the attendance of a mediation, for example.

In the unlikely event that we are unable to reach an amicable resolution with the other parties, we will guide and support you through the court process. We will always do our best to achieve a fair outcome for you.

Unfortunately, we are unable to predict how long your claim will take to settle or how much it will cost in total. Each case is unique and our fees will largely depend on the complexity and length of time your case takes to settle.

If your dispute is settled outside of Court, at mediation for example, the parties can decide on what happens to the costs themselves. If an agreement is not reached and the matter has to go to Court, the Court will make a decision in respect of the costs. However, it is usual practice that an unsuccessful party is liable to settle the costs of the case.