Inheritance and estates

Succession order or probate order?

• A succession order is given where there is no will. It declares the names of the heirs and the relative share of each of them in the estate (section 69(a)).
• A probate order is given where there is a will. It declares that the will is valid, except for provisions found to be void (section 69(b)).

The application is filed with the Registrar of Inheritance Affairs. With the order, the heirs approach the banks, the Land Registry and other bodies to transfer the assets to the heirs. A person who holds a will must deliver it, in the original or a certified copy, to the Registrar of Inheritance Affairs immediately after learning of the testator's death (section 75).

How do you object to a will or to a succession order?

When an application for an order is filed, the Registrar of Inheritance Affairs gives public notice of it and sets a time for filing objections, of not less than two weeks. Any interested person may file an objection within the time set, and as long as the order has not been given (section 67). Once an objection is filed, the application passes to the Family Court (section 67A).

An objection to a will rests on a ground in the Law. Finding defects in a will begins with checking these questions:

• Whether the testator could understand the nature of a will when he signed (section 26).
• Whether the will was made because of coercion, threat, undue influence, deceit or fraud (section 30).
• Whether a beneficiary under the will drafted it, witnessed it or took part in making it (section 35).
• Whether the requirements of form were met: two witnesses, date, signature (sections 19 to 23), and whether a defect in form can be cured (section 25).
• Whether there is a later will that revokes the earlier one (section 36).

The office represents both objectors and those who seek to have the will probated.

The order has already been given. Can it be amended or revoked?

Yes, in suitable cases. Under section 72 of the Succession Law, the Registrar of Inheritance Affairs or the court may, on the application of an interested person, amend or revoke an order it gave, on the basis of facts or arguments that were not before it when it gave the order, for example a will discovered later or an heir who was not included. A person who could have raised the argument earlier and did not do so at the first reasonable opportunity may be refused, so action is taken as soon as the fact is discovered.

Who administers the estate?

Where no estate administrator has been appointed, the heirs administer and distribute the estate themselves (section 121(b)). They must act by agreement, and in a matter on which they disagree they act as the court decides (section 122). In a matter that cannot be delayed, each heir may act alone.

Where the heirs cannot act together, or the estate is complex, an application is made to appoint an estate administrator. From the appointment, the heirs may not deal with the estate except with the permission of the administrator or the court (section 121(a)). First the debts of the estate are paid, and only then is the balance distributed among the heirs (section 107). The heirs may invite the creditors of the deceased to give notice of their claims, by public notice and within a period of at least three months (section 123).

How is the estate distributed? Estate distribution agreement

The assets of the estate are distributed among the heirs by agreement between them or by order of the court (section 110(a)). An estate distribution agreement, also called an heirs' arrangement, allows the assets to be divided differently from the shares in the order: for example, one heir receives the apartment and the others receive money. Without an agreement, the court distributes according to the provisions of the will or the rules in the Law (section 111).

Two further tools: an heir may renounce his share in the estate, as long as the estate has not been distributed (section 6), and an heir may, by written agreement, transfer or charge his share in the estate (section 7). Each route has a different result, including for tax, so the choice is made before signing. An agreement about a person's inheritance made during his lifetime is void (section 8(a)): agreements between the heirs are made only after the death.

Where the estate includes an apartment, see also An inherited apartment and Partition of an inherited apartment.

Who may continue to live in the deceased's apartment?

A person who lived with the deceased in his apartment immediately before his death may continue to live there for three months, and if he is an heir, for six months after the death (section 108(a)). The provision gives time to get organised, and does not decide who will ultimately receive the apartment.

Inheritance disputes: court or agreement?

Inheritance disputes are disputes within the family, so agreement has particular value. Before legal proceedings, and sometimes during them, mediation can be tried. Where there is no agreement, the office represents clients in objections, in claims to revoke an order, in applications to appoint an estate administrator and in claims for partition of estate assets.

The process in four stages

1. Gathering. Death certificate, the will if any, and a list of heirs and assets.
2. Application for an order. Filing an application for a succession order or a probate order with the Registrar of Inheritance Affairs.
3. Objections. If an objection is filed, the proceeding passes to the Family Court.
4. Distribution and registration. A distribution agreement if needed, transfer of the assets and registration of the rights.

What to bring to the meeting

• Death certificate.
• The original will, if any.
• Details of the heirs and family members.
• Asset documents: Land Registry extract, account details.
• A succession or probate order, and correspondence with the Registrar, if an application has already been filed.

Timetable and cost

Timetable: where there is no objection, the timing depends mainly on the Registrar of Inheritance Affairs. An objection moves the matter to the court and lengthens the process.

Cost: the fee is set in a written fee agreement, according to the type of work. Fees and publication costs are paid separately.

Need advice on inheritance law?

You may contact the office before filing an application for an order, after receiving notice of a will, or when the heirs cannot agree on the distribution. For making a will, see Making a will.