Probate and Administration of Deceased Estates

Probate

Generally, an order for provision or further provision is not made in a contested wills case (family provision application) unless there is a grant of probate in existence.

An applicant may commence proceedings before a grant of probate however you should be careful to ensure the claim is being made against the correct Will. It is therefore wise to wait until a grant of probate to avoid confusion.

You can imagine the waste of time claiming against a Will only to be advised at some future time that another newer Will has been found and that in deed there is now no need to claim because you have been included in the latest will.

Administration

Beneficiaries in a Will and people contesting the Will seeking provision or further provision are not entitled to any say in the administration of a deceased estate.

Beneficiaries in a Will and people contesting the Will seeking provision or further provision are not entitled to any say in the administration of a deceased estate.

The estate is not “frozen” whilst the family provision claim is in progress and real estate and other property may certainly be sold and/or transferred in an endeavour to collect funds into the estate, unless there is some special and specific reason why that should not happen. For example if it was clearly not reasonable to sell a particular property that one or more of the parties had an alleged entitlement to reside in.

If the parties disagree in relation to the administration of the estate during a family provision claim it is up to the claimant, if necessary, to seek orders from the court to retrain the executor or administrator from selling or otherwise dealing with asset of the estate.

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