Intestacy disputes: contesting an estate without a will

Losing someone is hard enough without a disagreement over what they left behind. But when a person dies without a valid will, that is often exactly what happens. Their estate is shared out according to a fixed legal formula – not according to what they would have wanted – and the people left behind do not always agree that the result is fair.

We explain how that formula works and who inherits in our guide to intestacy rules. Here, we look at contesting an estate without a will: what happens when the outcome is disputed

Contesting an estate without a will works differently from contesting a will. There is no document to challenge, no signature to question, and no allegation of pressure or lost capacity, because there is no will.

The arguments tend to be about three things instead: who is entitled to inherit (and who has been left with nothing), whether someone left out can ask the court to step in, and who gets to handle the estate – and whether they are doing so properly. This guide walks through the disputes we see most often and what can be done about each, under the law in England and Wales.

Why estates without a will often lead to disputes

The intestacy rules are strict. They recognise spouses, civil partners and blood relatives in a set order, and nobody else. An unmarried partner of twenty years, a stepchild who was never legally adopted, or a close friend the deceased thought of as family can all end up with nothing – no matter what everyone knew the deceased wanted.

That gap, between what the law hands out and what the family expected, is where most of these disputes begin. Our article on cohabiting couples’ inheritance rights explains why long-term partners are so often the ones caught out.

There is a second problem: with no will, there is no chosen executor. Rather than one named person in charge, the job of dealing with the estate falls to whichever relatives share the highest priority – and that can be several people at once, none of whom may agree. Add grief and money to a rulebook that does not reflect how many families actually live, and disagreements are common.

Inheritance Act 1975 claims: help for those left out by intestacy

If you have been left out by the intestacy rules, your most important option is usually a claim under the Inheritance (Provision for Family and Dependants) Act 1975. It lets certain people ask the court for “reasonable financial provision” from an estate that has not provided for them – and it applies to an intestacy in exactly the same way it applies to a will.

You may be able to claim if you are:

• The deceased’s husband, wife or civil partner;
• A former spouse or civil partner who has not remarried or entered a new civil partnership;
• Someone who lived with the deceased as a couple in the same household for at least two years before they died;
• A child of the deceased;
• Someone the deceased treated as a child of the family; or
• Anyone else the deceased was financially supporting just before they died.

How much the court might award depends on who you are. A surviving spouse or civil partner can receive whatever is reasonable in the circumstances, whether or not they actually need it to live on. Everyone else – a cohabiting partner included – is limited to what they reasonably need for their maintenance.

It is an important distinction: a partner left out by intestacy can bring a claim, but they do not automatically step into the shoes a husband or wife would have filled. There is more on how these claims work on our Inheritance Act claims page.

One thing to watch, and it really matters: there is a strict deadline. A 1975 Act claim normally has to be issued at court within six months of the grant of representation (here, the letters of administration). The court can allow a late claim, but that is at its discretion and never guaranteed – and the longer you wait, the harder it becomes. If you think you might have a claim, it is best to speak to someone as soon as possible.

Contesting who administers the estate

With no will, there is no executor – so someone has to be appointed to deal with the estate. That person is called an administrator, and they get their authority from the Probate Registry through a grant of letters of administration. Who is entitled to apply follows a set order that closely mirrors the order of inheritance: spouse or civil partner first, then children, then parents, and on down the line.

Problems come up when several relatives have an equal right to apply and cannot agree who should take it on – or when the person entitled simply is not the right choice, perhaps because of a conflict of interest, past dishonesty, or an inability to do the job.

If the person first in line should not act, the court can ‘pass over’ them under section 116 of the Senior Courts Act 1981 and appoint someone else, where there are special circumstances that make it necessary or expedient to do so. That is something dealt with before a grant is issued. And if you need time to look into a dispute first, you can enter a caveat, which stops a grant being issued until the matter is resolved.

Our trustee and executor disputes team handles these applications regularly.

Removing or replacing an administrator

Not every problem shows up before the grant. Sometimes an administrator drags things out for years, goes quiet and stops keeping the beneficiaries informed, puts their own interests first, or simply cannot get the estate finished.

Once a grant has been issued, a beneficiary or a co-administrator can ask the court, under section 50 of the Administration of Justice Act 1985, to remove or replace a personal representative. The court’s main concern is that the estate is administered properly and that the beneficiaries are protected, and it will step in where there is a real risk the administrator will not do the job fairly and effectively.

It is a serious step, though – the court is looking for a genuine problem with how the estate is being handled, not a personality clash.

Disputes about who is entitled to inherit when there is no will

Because intestacy turns entirely on family relationships, many disputes hinge on status – who counts, in law, as family. Is the person legally claiming to be a child of the deceased? Was the marriage or civil partnership valid? Are there other relatives out there at all? Biological children (including any the deceased never openly acknowledged) and legally adopted children inherit; stepchildren who were never adopted do not.

Where there is doubt about parentage, DNA evidence sometimes has to settle it. And where someone dies with no known close family, tracing more distant relatives – or proving there are none, so the estate passes to the Crown as bona vacantia – can become a dispute in itself, especially if a relative comes forward later.

An administrator who pays out before entitlement is properly settled can end up personally liable, which is why a missing or unknown beneficiary has to be dealt with carefully rather than assumed away.

Is there a valid will after all?

Sometimes the real question is whether the estate is intestate at all. One relative produces a document they say is the deceased’s will; others argue it does not count – because it was not signed and witnessed properly, or because the deceased did not have the mental capacity to make it, or was pressured into it. If the will holds up, the intestacy rules do not apply. If it fails, they do – and that can change everything.

These are will validity disputes, and they decide who inherits before any question of provision or who administers even comes up. If you think a will is not valid, or you are defending one that others are challenging, our will disputes team can talk you through where you stand and what happens next.

The family home when there is no will

The family home is usually the largest asset in the estate and often the biggest source of tension. What happens to it depends on how it was owned:

• If the couple owned it as joint tenants, it passes automatically to the surviving co-owner, outside the intestacy rules altogether.
• If they owned it as tenants in common, the deceased’s share falls into the estate and is shared out under those rules. (Our intestacy rules guide explains the difference in more detail.)

A surviving partner who is not a legal co-owner is not necessarily out of options. They may still be able to claim a share of the home through trust law – for example, a constructive trust or an estoppel argument, where they helped pay for the property or were promised a stake in it.

Claims like these sit alongside a 1975 Act claim rather than replacing it, so a partner left out of the estate can pursue both a share of the home and reasonable provision from the rest.

Time limits for contesting an estate without a will

Two deadlines matter more than anything else here. A 1975 Act claim usually has to be brought within six months of the grant of letters of administration. And if you want to pause a grant while someone looks into a dispute, you must submit the caveat before that grant is issued. Miss either, and it can be hard – sometimes impossible – to put right, so getting advice early is not just sensible: it can be the difference between having a claim and not.

How our contentious probate solicitors can help

Our contentious probate solicitors act for partners and dependants left out by the intestacy rules, for beneficiaries worried about how an estate is being handled, and for administrators who find themselves on the receiving end of a challenge.

We can advise on Inheritance Act 1975 claims, disagreements over who should administer an estate, removing an administrator and questions of entitlement and will validity. Where a dispute is better settled without going to court, we can also assist with negotiation, mediation and a deed of variation.

If you are dealing with a disputed estate where there was no will, or you think you may have been unfairly left out, contact us for a confidential, no-pressure chat. We will give you a clear view of where you stand and what your options are.

Riah Sattar