CHALLENGING PROBATE WHEN THERE IS NO WILL

If a family member has passed away without a Will, known as “intestate”, dealing with their estate can be a daunting task.

It can be even more difficult if you or someone else decides to challenge the probate process.

Understanding the rules surrounding intestacy, potential reasons why a challenge would need to be made, as well as the importance of making a Will can help you navigate this process.

INTESTACY LAWS

Intestacy laws dictate how a person’s estate will be distributed if they pass away without a will. Generally, these laws dictate the distribution of the assets to the deceased’s closest living relatives. This can vary by situation, such as if they were married or had children.

The priority typically goes to spouses and/or children, but if the deceased was never married and had no children, assets will be distributed to parents, siblings, half siblings, grandparents, uncles and aunts, and so on in that order, depending on surviving members of the family.

Understanding the rules of intestacy is crucial to determining how the deceased’s estate will be divided.

However, challenges or disputes may be made if the intestacy laws do not align with the deceased’s wishes or the dynamics of the family. For example, if the deceased lived with their partner but they were unmarried and had no children, the deceased’s estate would pass to their parents first and then to their siblings if the parents were no longer alive. This means the deceased’s partner would not inherit anything from the estate under the rules of intestacy and could now face serious financial problems.

WHY SOMEONE MIGHT NEED TO MAKE A CHALLENGE

There are several reasons why someone might need to challenge the probate process when there is no Will:

  1. DISAGREEMENTS AMONG HEIRS
    Disagreements can arise among heirs regarding the distribution of assets. Without a Will, there will be no clear instructions, and this may potentially lead to disputes or challenges, especially if certain family members feel unfairly treated by intestacy laws.
  2. COMPLEX FAMILY DYNAMICS
    The deceased’s family relationships and roles may not align with those typically expected and addressed in intestacy laws. This could mean that the laws do not adequately meet everyone’s needs or expectations, leading to conflicts over inheritance rights and asset distribution.
  3. ASSET DISTRIBUTION
    Similar to the above, intestacy laws may not align with non-traditional family structures, such as unmarried partners or stepchildren, this could lead to disputes over the asset distribution. In these cases, challenging probate may be necessary to ensure fair treatment for all involved parties.
  4. CONCERNS ABOUT VALIDITY
    In certain cases, there may be concerns about the validity of the intestacy process, such as allegations of undue influence or incapacity on the part of the deceased. Challenging probate can help address these concerns and ensure the estate is distributed according to the deceased’s true intentions.

THE IMPORTANCE OF MAKING A WILL

Making a Will is important as it is the best way to avoid any potential complications and disputes that can arise from intestacy laws. A Will allows you to:

  • Specify Your Wishes: A Will enables you to clearly outline how you want your assets to be distributed after your death. This ensures that your wishes are known and followed, minimising the potential for conflicts among family members. You can also exclude people from inheriting under your estate who would inherit under the rules of intestacy such as an estranged partner/sibling/child.
  • Provide for Loved Ones: With a Will, you can provide for loved ones who may not be covered by intestacy laws, such as unmarried partners, individuals considered as stepchildren but not legally classed as a stepchild by marriage, or even close friends. You can also designate guardians for young children and make provisions for their care.
  • Minimise Taxes and Expenses: A well-drafted Will can help minimise taxes and administrative expenses associated with probate, ensuring that more of your assets are passed on to your chosen beneficiaries.
  • Avoid Intestacy Laws: By making a Will, you can avoid the uncertainty of intestacy laws and ensure that your estate is distributed according to your wishes, rather than default legal provisions.

If you’re facing probate without a Will or considering creating your own Will, we’re here to help guide you through the process and address any questions or concerns you may have.

For more information on creating a Will, visit our wills page.

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