Executors And The Risk Of An Inheritance Claim

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When someone dies in the UK leaving a will, the probate procedure comes into play. Acting as an executor in the process of UK probate is a very responsible post. It also carries some risks - if executors do not take some basic steps, they may find themselves personally liable for debts of an estate for example. In particular all executors may well want to consider the following steps to guard themselves against any personal liability:

Statutory notices

These are Notices which the executors place in the London Gazette and a local newspaper, which advertise for any creditors of the estate to come forward.

They provide a window of 2 calendar months within which time anybody with any interest in the estate can make themselves known to the executors for payment.

Once the Notices have expired, creditors can only make a claim against the estate if the executors still hold assets out of which any claims can be met. They are prevented from making a claim against the executors personally.

If a Notice is not lodged and it later turns out that creditor is owed from the estate, then the executor can become personally liable for this amount.

It is generally held to be good practice that statutory notices are entered in any estate where the executors are not also the sole residuary beneficiaries.

Claims under the Inheritance (Provision for Family and Dependants) Act 1975

An inheritance claim can be made under this UK Act by anyone who was being maintained by the deceased at the time of death, or had a right to be maintained; a claim for reasonable financial provision from the estate can be made.

An inheritance claim like this, is usually brought within 6 months from the Grant of Probate.

If an executor distributes an estate within this six month period, he can be held personally liable for successful claims; there is no liability upon a PR to distribute an estate before one year passes since the date of death.

Those entitled to bring an inheritance claim fall within the following categories:

a. The civil partner, or husband/wife of the deceased.

b. A former husband, wife or civil partner who has not entered into either a subsequent marriage or civil partnership.

c. Anyone who, during all of the two year period which finished immediately before the deceased's death, was living in the same household as the deceased as either a husband, wife or as a civil partner.

d. A child of the dead person.

e. Everybody who was considered as a child of the deceased or was considered as part of the family (not included the deceased's actual children).

f. Any other person who prior to the death of the testator was being looked after (i.e. financially maintained).

If executors do have concerns over liability they should postpone the dissolution of the estate for a further 6 months after the date of the grant, or at the very minimum they should try to obtain an indemnity from any beneficiaries to say that if an inheritance claim raises its head they are willing to put forward the appropriate amount of cash if it is successful.

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