Overseas assets and UK probate: coordinating estate administration

Overseas assets and UK probate: coordinating estate administration

A grant of probate issued in England and Wales is not automatically recognised abroad. Probate administration in the UK involving overseas assets must therefore be coordinated with the rules and procedures in each country where an asset is held. A local process or resealing of the UK grant may be required. Executors should also obtain date-of-death valuations for overseas assets as soon as possible.

It is understandable to expect one probate process to cover an entire estate, but cross-border administration can involve different legal systems, tax rules and practical steps. Understanding how these fit together can clarify what may affect access to assets and the timing of distributions.

This article explains how UK and overseas administration can be coordinated, when another country may require a separate process or recognise a UK grant, and how foreign assets are valued. It also explains why valuations and tax considerations matter before an estate is distributed.

Key Takeaways

  • Identify which country’s succession rules may apply, especially where foreign property or forced heirship could affect who inherits.
  • Plan for UK and overseas tax obligations before distributing the estate, as tax may be due in more than one country.
  • Find out whether the country holding each asset accepts a UK grant, requires it to be resealed or needs a separate local probate process.
  • Obtain date-of-death valuations for overseas assets early; these help inform tax declarations and the administration of the estate.

How does probate work when there are foreign assets to consider?

In England and Wales, probate confirms an executor’s authority to administer an estate. Forced heirship rules, local wills and conflicting succession laws can affect who inherits foreign assets.

Foreign succession and forced heirship

Foreign succession law determines how an estate passes under another country’s rules. Forced heirship reserves a fixed share for children or other relatives, limiting what a will can leave to others. France, Spain and Italy have rules protecting certain heirs. A local will may conflict with a UK will if its wording revokes the other document. Before distribution, executors need to establish which law applies and whether both wills remain effective.

Applying UK probate to foreign assets

UK probate confirms an executor’s authority to deal with assets in England and Wales, but a UK grant does not automatically unlock foreign accounts or property. The country where each asset is held determines whether to accept the grant, require resealing or demand local probate. A foreign will may also be admitted to UK probate, although the process is more complex than a standard application. Requirements depend on the asset, its value and the deceased’s circumstances. Without a will, the process in England and Wales is an application for letters of administration.

Moveable and immoveable assets abroad

Moveable assets include bank accounts and investments; immoveable assets include land and buildings. In many countries, the deceased’s domicile may determine the law governing moveable assets, while the law of the country where land is situated may govern that property. This distinction can divide an estate between legal systems. For example, executors may need a UK grant for UK administration, while foreign land requires a separate local process. The asset’s location and type therefore affect the steps required.

Advice from UK and foreign lawyers

Early advice from UK and foreign lawyers can help align estate administration. A lawyer in the country where assets are held can explain local succession rules and grant requirements, while UK advice can address the will’s effect on administration here. Together, this analysis can identify whether separate wills conflict, which documents remain effective and whether executors must report foreign tax. It can also flag possible double taxation before distributions. This is especially relevant when an estate includes French property, a Spanish account or wills drafted in different jurisdictions.

Co-ordinating UK and overseas estate administration

UK executors should identify overseas assets, establish the requirements in each country, then coordinate tax and administration before distributing the estate. For a UK-domiciled individual’s estate, UK inheritance tax is 40% above the nil-rate band of £325,000, according to HM Revenue & Customs.

Identifying and securing overseas assets

Identifying and securing overseas assets involves locating them, notifying asset holders and establishing how they can be accessed. This gives executors a clearer basis for dealing with accounts, property and other estate assets across borders. Contacting a foreign bank can notify it of the death and provide a valuation and details of its process. Executors should also gather information about assets in each country and coordinate with lawyers abroad where local procedures apply.

Before distribution, executors need to consider UK inheritance tax alongside any foreign tax due. The country where an asset is held may impose inheritance or estate tax, creating a risk of double taxation. The UK has treaties with certain countries that may allow tax paid abroad to be credited against UK tax. Executors should consider the tax burden and who is liable before paying beneficiaries.

Executors and administration timescales

Choosing executors for a cross-border estate means considering who can coordinate information and decisions across jurisdictions. Executors may need to liaise with foreign asset holders, lawyers and beneficiaries while handling UK administration. Complex international estates may take 18 months to 3 years; estates involving foreign property, multiple jurisdictions or complex tax issues may take 2-4 years to administer fully. Timely updates can help beneficiaries understand delays.

Distribution also requires care if a beneficiary is bankrupt. Personal representatives may become personally liable for a bankrupt beneficiary’s creditors if they distribute funds to that beneficiary instead of complying with the bankruptcy laws where the beneficiary resides. Bankruptcy searches before distribution can help executors identify this risk and pause payment while the position is addressed.

For support with UK probate and estate administration involving overseas assets, consider probate and estate planning advice.

Overseas assets and UK probate: coordinating estate administration

Recognition of UK grants abroad

A grant of probate issued in England and Wales is not automatically recognised in another country. The required documents depend on the jurisdiction: a country may accept a translated, notarised or resealed UK grant, require local probate, or not require a grant.

When a grant of probate is required

A grant may be needed when the country holding an asset requires formal proof of the deceased’s representative’s authority. Whether one is required depends on the country, asset value and the deceased’s circumstances. For example, a foreign bank may require a grant before releasing an account, while another jurisdiction may use a different process. Executors should establish local requirements before relying on an England and Wales grant to access or transfer an asset.

Resealing UK grants overseas

Resealing is a process through which a court in another jurisdiction gives a UK grant local effect. Some Commonwealth countries, including Australia, Canada and New Zealand, may offer a simplified route if their conditions are met. Ireland may also reseal UK grants. The Colonial Probates Act 1892 is relevant to resealing in certain countries, including South Africa, Australia, New Zealand and some Caribbean nations. Requirements vary, so a grant that works in one country may not work in another.

Country-specific probate documents

Country-specific probate documents are the evidence and applications required by the jurisdiction holding each asset. Some authorities may accept the UK grant after translation, notarisation or resealing; others require a separate local probate application. France, Spain and Germany generally require a separate legal process to access assets rather than treating UK probate as sufficient. Executors should establish the required documents for each country, including whether the original grant or a translated version is needed. These requirements shape how estate administration proceeds across jurisdictions.

Overseas asset valuations and administration

Executors should obtain a date-of-death valuation for each overseas asset as soon as possible. In probate administration in the UK, overseas asset values provide a consistent starting point for estate administration and tax reporting. The evidence needed depends on whether the asset is a bank account, investment or property, and on the records available in the country where it is located. Keep each valuation with its supporting documents.

For an overseas account, notify the bank of the death and request its valuation and details of the process for dealing with the funds. For foreign property, obtain a valuation reflecting its value at the date of death, rather than relying on an old purchase price. An investment statement may provide relevant account information, while a property may require a separate valuation. These records help executors explain how each estate value was reached.

Overseas assets may also require tax declarations in more than one country. Executors should record each asset’s location, date-of-death value, ownership details and any foreign tax paid. This information helps lawyers assess reporting and distribution obligations. The deceased’s domicile can affect the tax position, while the country holding an asset may impose its own tax. Consider potential double taxation before beneficiaries receive funds.

Valuation and access are linked: foreign assets usually require local probate or an equivalent process before they can be transferred. A bank in one country may need different documents from a property authority elsewhere. In France, foreign succession rules may affect who inherits, so a valuation alone cannot settle entitlement. Probate administration in the UK involving overseas assets must account for local requirements, asset records and the will before distribution.

For help with overseas valuations and related probate administration, contact Feltons Solicitors LLP about probate support.

Feltons Solicitors LLP: Wills, Probate, and Estate Planning

Feltons Solicitors LLP provides Wills, Probate, and Estate Planning services for people managing estates with assets in the UK and abroad. Probate support can help executors understand the UK administration involved, organise estate information and consider how overseas assets affect the process. It may be useful when a will covers property or accounts in another country, several wills need to be considered, or beneficiaries are awaiting an update on distribution.

For future planning, tailored advice can help people with overseas interests consider how their wills and estate arrangements fit together. Each jurisdiction’s rules still matter, particularly where foreign property or succession requirements affect administration. A clear understanding of the estate’s UK and international elements can inform decisions ahead.

Contact Feltons Solicitors LLP to discuss probate and estate planning support.

Make a considered start on the next steps

Cross-border estate administration is easier to approach when decisions are made in a clear order. Start by identifying what still needs to be resolved, such as a foreign institution’s requirements, a valuation or the status of a local application. This gives executors a practical basis for coordinating the remaining work and keeping beneficiaries informed.

For overseas assets, probate administration in the UK may involve decisions that connect legal, tax and practical issues. A considered review can clarify which matters need attention first and what information is needed to move forward. It can also help executors avoid treating each asset as an isolated task when one decision may affect another.

Feltons Solicitors LLP offers Wills, Probate, and Estate Planning, alongside Divorce and Financial Arrangements and Residential and Commercial Conveyancing. If you would like to discuss the estate’s UK probate administration, contact Feltons Solicitors LLP. A clear conversation can help you identify a constructive next step.

Frequently Asked Questions

What Happens When an Estate Includes Foreign Assets?

An estate with foreign assets usually needs coordinated UK and local administration, rather than one process covering every asset. For example, a foreign bank may require evidence of the executor’s authority before releasing an account, while UK probate continues separately. Executors can record each institution’s requirements, valuations and foreign tax, then consider these alongside the will before agreeing distributions to beneficiaries.

What is a cross-border estate?

A cross-border estate contains assets in England and/or Wales and assets in another country outside British jurisdiction. Someone with a home in England and an investment account abroad is one example; overseas land creates another jurisdictional link. The term describes where the assets are held, not the deceased’s nationality. This matters because different assets can involve separate succession rules, tax systems and document requirements.

Which country’s laws apply to foreign assets?

The applicable law can depend on the asset’s location and the deceased’s domicile, so one estate may involve several succession systems. French heirship rules may apply to a person’s worldwide assets if they lived in France at death. If they lived and were domiciled in the UK, those rules may apply only to immovable assets in France. A Brussels IV declaration directing English law may not prevent French heirship rules applying to assets in France.

How are overseas assets treated in UK probate and estate administration?

Overseas holdings form part of the estate’s wider valuation and distribution picture, but UK probate does not itself transfer title abroad. In England and Wales, personal representatives value the estate, pay debts and taxes, then distribute assets under the will or intestacy rules. For foreign holdings, they must also account for local transfer requirements and foreign tax reporting, so beneficiaries may receive different assets at different stages.

Does UK probate cover foreign property, bank accounts and investments?

No. A UK grant does not automatically provide access to foreign property, bank accounts or investments. Acceptance depends on the country and the asset. A bank may require proof of authority, while foreign land may need local probate or an equivalent process. The asset’s value and the deceased’s circumstances can also affect whether a grant is needed, so requirements must be assessed for each holding.

How do UK domicile and residence affect inheritance tax on overseas assets?

Domicile and residence are distinct: a person has one domicile at a time, which may differ from their residence or nationality. For a UK-domiciled individual, UK inheritance tax applies to worldwide assets; for someone not UK-domiciled, HMRC usually limits claims to assets physically in the UK. The Long Term UK Residence test has applied since 6 April 2025, adding a further factor when assessing the tax position.

Legal help with intestate estate administration in England and Wales

Legal help with intestate estate administration in England and Wales

A long-term partner may inherit nothing under intestacy if they weren’t married to the deceased or in a civil partnership. In England and Wales, the intestacy rules set who inherits, and lawyers handling estate administration under those rules can help manage the legal and practical steps. Where a spouse or civil partner and descendants survive, the spouse receives personal possessions, the first £322,000 and half of the remainder for deaths on or after 26 July 2023, according to The National Archives; descendants receive the other half.

It’s understandable to expect a person’s wishes or family circumstances to guide what happens, but without a will, the statutory order of entitlement applies. The result can be surprising, particularly for unmarried partners, stepchildren and relatives from different relationships.

This guide explains who may inherit, how administrators gather records and value assets, and when Letters of Administration may be needed. It also outlines how legal support can help identify beneficiaries, deal with estate assets and distribute them, so you can understand the next steps.

Key Takeaways

  • Who inherits depends on the statutory order of entitlement, set out in Section 46 of the Administration of Estates Act 1925, as amended, according to The National Archives.
  • Gathering records of assets, debts and ownership helps administrators establish what belongs in the estate and what needs valuing.
  • Letters of Administration may be needed to give an administrator authority to deal with estate assets when there’s no will.
  • Legal support can help identify beneficiaries, organise the administration process and handle the distribution of the estate under the rules.

How long does dealing with an intestate estate usually take?

In England and Wales, the order of entitlement on intestacy is set out in Section 46 of the Administration of Estates Act 1925, as amended, according to The National Archives. The rules for a surviving spouse changed following the Inheritance and Trustees’ Powers Act 2014, according to The National Archives.

For deaths on or after 26 July 2023, the statutory legacy for a surviving spouse or civil partner is £322,000, according to The National Archives. The amount is subject to review and can change. A surviving spouse must survive the deceased by 28 days before inheriting under intestacy, according to The National Archives.

Who inherits depends on which relatives survive the deceased. A spouse or civil partner comes first, followed by descendants, parents, siblings and their children, then more distant relatives. Children from different relationships and legally adopted children inherit equally. Stepchildren are not treated as children unless legally adopted, and an unmarried partner does not inherit under these rules.

If the deceased leaves a spouse or civil partner and children, the spouse receives personal possessions and the statutory legacy. The remaining estate is divided equally between the spouse and the children collectively. Without a spouse, children inherit equally; if a child died earlier, their children may inherit that branch’s share. If there are no children, entitlement moves to parents, siblings and other relatives.

Scotland and Northern Ireland have different intestacy rules from England and Wales. In Scotland, prior rights include the family home up to £473,000; in Northern Ireland, a surviving spouse must survive the deceased by 28 days.

Jointly owned assets may pass outside the estate and intestacy rules. A life insurance policy or pension scheme may instead pass to its nominated beneficiary. Administrators should identify ownership and nominations before calculating beneficiaries’ shares, to avoid including assets that pass separately.

Careful identification can prevent disputes about who is entitled. An intestate estate typically takes 12 to 24 months to administer, around 3-6 months longer than administration with a will. Confirming family relationships, ownership and any beneficiary nominations helps establish the correct distribution before assets are released.

Gathering documents and valuing assets

Estate administration starts by establishing what the deceased owned, owed and held jointly. The administrator gathers key records, prepares an inventory of assets and liabilities, secures property, arranges valuations, settles valid debts and distributes the estate to those entitled under intestacy.

Useful records include the death certificate, bank and savings statements, property title documents, mortgage details, investment statements, and pension or life insurance correspondence. For debts, gather loan statements, credit card bills, utility accounts and invoices. These records help distinguish estate liabilities from assets that may pass directly to a nominated beneficiary.

Joint ownership can affect whether assets are included in an estate or distributed under intestacy rules. The administrator should establish how each asset was owned by reviewing title documents, account records or the relevant policy. Joint ownership can affect whether a home or account is available for distribution to beneficiaries.

Record each asset’s ownership, estimated value and supporting evidence. Secure an empty property, arrange insurance where appropriate, and keep clear records of actions and expenses. A professional valuation is advised for probate assets thought to be worth more than £500. This can support accurate estate reporting and help prevent beneficiaries receiving shares calculated from an unreliable estimate.

If the deceased was married, property records and financial statements can help clarify which assets belonged to them, which were jointly held and which may pass under a nomination. Parents or other relatives may inherit under the statutory order, but only estate assets are distributed through that process. Keep these categories separate in the inventory.

After identifying assets and liabilities, the administrator arranges payment of estate debts and relevant expenses before distributing what remains. If ownership, valuations or a creditor’s claim is disputed, probate and estate administration support can help assess the records and resolve the issue. A clear paper trail gives beneficiaries a sound basis for understanding the final accounts.

Legal help with intestate estate administration in England and Wales

Do I need letters of administration straight away?

An administrator may not need legal authority immediately, but usually needs it to collect and distribute estate assets. In England and Wales, that authority is generally a Grant of Letters of Administration.

Applying for Letters of Administration

The person with the highest priority applies: first the surviving spouse or civil partner, then children, parents, siblings, grandparents, and aunts and uncles. This order determines who may apply to act as personal representative, not who receives each asset. Intestacy rules determine who inherits separately.

The applicant establishes the estate’s assets and liabilities, identifies beneficiaries and submits the application. If all beneficiaries are adults, one person can apply alone. If minor beneficiaries are entitled, two personal representatives are required. The applicant should also consider whether a small estate can be dealt with without a grant, as financial institutions set their own thresholds.

Letters of Administration and Probate Applications

When someone dies without a will, the administrator applies for Letters of Administration rather than a Grant of Probate. The grant authorises them to deal with assets held in the deceased’s sole name, such as a bank account that requires formal authority before funds can be released.

Approval can take up to 16 weeks, depending on the Probate Registry’s workload. This is the application period, not the full time needed to administer the estate. Before applying, the representative gathers asset information and considers any inheritance tax reporting or payment required.

A grant is required in most cases, but not every estate needs one. For example, an institution may release a modest account without a grant under its own threshold. This does not remove the administrator’s duty to follow intestacy rules and account for estate assets.

A surviving spouse or civil partner has priority to apply, but cohabitation alone does not give an unmarried partner that priority. Family agreement can help relatives organise the application, but it does not change the legal order. If relatives dispute who should apply, the application and estate administration may become more complex.

Legal support can help an administrator apply intestacy rules correctly, keep estate records clear and address disputes between relatives. Administrators have less discretion than executors named in a will, so decisions about the estate must follow statutory entitlement rules. A solicitor advising on estate administration can explain how those duties apply to the circumstances.

A solicitor can help establish who may inherit, confirm the administrator’s authority and prepare the steps needed to collect assets. For example, a bank may require a grant before releasing an account held solely in the deceased’s name. The administrator must also keep beneficiaries informed and retain records of payments, debts and decisions.

Extra care is needed where a beneficiary is under 18, family relationships are disputed or estate assets have unclear ownership. In England and Wales, two personal representatives are required when an intestate estate has minor beneficiaries entitled to it. Lawyers experienced in estate administration under intestacy rules can help coordinate the process and explain how this requirement affects the administration.

Relatives may agree to rearrange an estate’s distribution through a deed of family arrangement, provided all affected beneficiaries agree and have capacity. This can address a family’s particular circumstances, but it does not allow the administrator to change the distribution alone. Legal advice can clarify who must consent and how to record the agreement.

Solicitor fees for intestacy and estate administration depend on the case and are provided after a quote request. Cost factors include the number and type of assets, the records available, the work involved in obtaining a grant, tax reporting and whether disputes arise.

Legal help may be especially useful when relatives disagree about who should administer the estate, a surviving spouse or civil partner’s entitlement is contested, or creditors and beneficiaries need careful coordination. A solicitor can help distinguish legal entitlement from family expectations and clarify the administrator’s responsibilities.

If you’re dealing with an intestate estate, discuss estate administration support to clarify the next steps and the work involved.

Feltons Solicitors LLP: Wills, Probate, and Estate Planning

Feltons Solicitors LLP can help administrators understand their responsibilities and progress an intestate estate in England and Wales. Its Wills, Probate, Trusts and Estate Planning service can support you with identifying beneficiaries, applying for Letters of Administration, managing estate assets and questions about distribution.

Consider legal help when family relationships are complex, asset ownership is unclear, beneficiaries disagree or the estate includes property that must be dealt with. Advice can clarify the next steps and help keep the administration aligned with intestacy rules.

To discuss support with an intestate estate, contact Feltons Solicitors LLP.

Take the next step with confidence

Before administration moves forward, consider whether any uncertainty could affect the people involved. Unclear family relationships, competing accounts of ownership or disagreement about an administrator’s role can complicate decisions. Intestacy rules estate administration lawyers can help identify which questions need resolving and explain how to document decisions responsibly.

Legal advice may be useful when a decision affects several beneficiaries or family discussions become difficult. A solicitor familiar with intestacy and estate administration can clarify the administrator’s responsibilities and help map out practical next steps. They can also distinguish legal entitlement from family expectations, giving you a clearer understanding of the process.

For guidance tailored to your circumstances, contact Feltons Solicitors LLP for help. A considered conversation can help you decide how to proceed with care and confidence.

Frequently Asked Questions

Who inherits if there is no will?

In England and Wales, eligible relatives inherit according to the statutory order, not their personal closeness to the deceased. A spouse or civil partner has priority, with descendants also entitled when the deceased leaves children or other descendants. If there are no descendants, the spouse or civil partner may inherit the whole estate. Otherwise, entitlement can pass to parents, siblings and more distant relatives. Unmarried partners are not entitled under intestacy.

Can step children inherit under Intestacy?

Stepchildren do not automatically inherit under intestacy unless the deceased legally adopted them. For example, a stepchild who lived with the deceased for many years is not treated as their child for statutory distribution without adoption. Beneficiaries may agree to rearrange an estate’s distribution through a deed of family arrangement, provided everyone affected has capacity and agrees. The arrangement must be made within two years of the death.

Can the outcome of intestacy be disputed?

Yes. A dispute may concern whether someone qualifies as a beneficiary, how an asset is owned or whether the administrator has followed the statutory order. Keep relevant records, such as family documents, property papers and estate accounts, together to clarify the issue. Beneficiaries can agree to a different distribution through a deed of family arrangement if everyone affected has capacity and consents. If they disagree, legal advice may help.

How can I find out if someone left a valid Will?

Look through the deceased’s important papers, correspondence and secure storage for an original will or details of the solicitor who prepared it. Ask relatives who may know where documents were kept, and contact any solicitor known to have advised the deceased. If you find a will, share it with the person handling the estate before relying on intestacy, as it may cover all or only part of the estate.

How can intestacy be avoided?

Make a will that records how you want your estate distributed and appoints someone to administer it. Review it when family circumstances or assets change, so its instructions remain relevant. Keep the signed document safe and tell someone you trust where it is stored. A will can also address intentions that intestacy may not reflect, such as providing for an unmarried partner or a stepchild who has not been adopted.

How long does it take to sort out an estate without a will?

Administering an estate without a will typically takes 12 to 24 months, around 3-6 months longer than administration with a will. The time depends on practical tasks such as identifying beneficiaries, obtaining asset information, dealing with debts and securing any grant needed to access accounts. Locating relatives or resolving disagreements can add further work, so the administrator’s progress depends on how quickly each issue is addressed.

Contested statutory will applications in the UK: what the court considers

Contested statutory will applications in the UK: what the court considers

A contested statutory will application in the UK is not the same as a challenge to an existing will’s validity. In England and Wales, the Court of Protection can approve a will for someone who lacks testamentary capacity, but the decision is whether the proposed will is in that person’s best interests. The Mental Capacity Act 2005 requires this consideration, according to UK Parliament.

It is understandable to see a proposed statutory will and a disputed earlier will as part of the same conflict. They raise different legal questions: objections may prompt the Court to examine the proposed arrangements more closely, but a statutory will application does not decide whether an earlier will was valid.

This article explains what a statutory will is, how testamentary capacity is assessed and what the Court considers when an application is contested. It also explains how objections, an existing will and a separate dispute about validity fit together, helping you identify which issue needs attention.

Key Takeaways

  • The Court focuses on the person’s best interests, including their wishes, values and circumstances, when considering a proposed statutory will.
  • A well-supported application brings together capacity evidence, a proposed draft will and relevant people’s views.
  • A diagnosis alone does not establish whether someone can make a will; capacity relates to the decision and the person’s understanding.
  • An objection to a proposed statutory will is distinct from challenging whether an existing will is valid, and the difference can shape the next legal steps.

What will the Court consider when it receives an application for a statutory will?

According to UK Parliament, the Mental Capacity Act 2005 requires the Court of Protection to consider the best interests of the person who lacks capacity when deciding a statutory will application. In England and Wales, the Court can authorise a statutory will under section 18(1)(i) of that Act. In contested statutory will applications in the UK, the Court decides whether the proposed will and its distribution of the estate are appropriate for that person.

The Court considers the person’s past and present wishes, beliefs and values, alongside circumstances they would likely weigh if they had capacity. Where practicable and appropriate, it also considers the views of relevant family members, carers, attorneys and deputies. For example, evidence of a close relationship or the person’s previous intentions may help show why a proposed gift reflects their wishes.

An application needs supporting evidence and a draft proposed will. The materials include a COP1 application form, a COP3 capacity assessment and evidence in a witness statement with a statement of truth. Medical evidence addresses capacity; other evidence explains the person’s circumstances, wishes and reasons for the proposed terms. An application to amend or remake an existing will must explain the grounds for the change.

The Court may decide the application on the papers, without a hearing. If objections raise issues that need closer consideration, it may list a hearing to examine the evidence and proposed terms in more detail. Contested statutory will applications in the UK can therefore proceed beyond the initial paperwork.

Applicants must pay court fees and the cost of a report on the person’s testamentary capacity. When an application is appropriate and made in good faith, legal costs are generally paid from the person’s estate. The total depends on the work involved and whether the application is disputed.

People named in the proposed will, beneficiaries under an earlier will or intestacy, and other interested parties may be notified. They can make representations or object, which may prompt a hearing. Opposing an application can lead to further proceedings, legal work and costs payable from the estate.

Court of Protection hearings normally take place in public, but orders often prevent P and family members from being identified in reporting. Section 12(1)(b) of the Administration of Justice Act 1960 applies to the private statutory will proceedings described.

Applying to make or change a will for someone who lacks capacity

In England and Wales, an application to make or change a will for someone who lacks capacity is made to the Court of Protection. Permission is required unless an exemption applies.

Who can apply

Section 50 of the Mental Capacity Act identifies who may apply, including the person concerned, an attorney, deputy, Official Solicitor or public guardian. Certain beneficiaries and people the person might be expected to provide for may also apply. Others need the Court’s permission. This matters because the applicant must have a recognised connection or authority to act on the person’s behalf. For example, a deputy can seek approval for a proposed will when the person cannot make one themselves.

Permission to apply

Permission is the Court’s authorisation for an eligible applicant to bring a statutory will application. Unless an exemption applies, the applicant must obtain permission before the Court considers making or changing the will. The application sets out the proposed terms and why they suit the person’s circumstances. A request to amend an existing will must explain the grounds for the change. This helps distinguish a reasoned proposal from a disagreement about inheritance alone.

Practical and emotional challenges

An application can involve detailed paperwork, medical evidence and discussion with relatives whose inheritance may change. Those involved may disagree about the person’s past and present wishes, relationships or financial needs. For instance, a proposed gift to one relative may be opposed by someone who benefits under an earlier will. Because the process can be personal as well as legal, clear evidence and a focused explanation help keep attention on the person’s interests.

The application typically includes a COP1 form, a COP3 capacity assessment, a draft will and supporting evidence. Relevant people may be notified, and objections can lead to a hearing; applications generally take several months. Organising the evidence and proposed terms is central to applying. Advice on wills, probate and estate planning can help clarify the legal steps and prepare the application.

Contested statutory will applications in the UK: what the court considers

How do you know if someone has capacity to make a will?

Testamentary capacity relates specifically to making a will; it is not a general measure of mental capacity. The person must understand what making a will means, the extent of their estate and the claims of people who might expect to benefit. A specialist assessment considers these points and records the findings in medical evidence. Difficulty managing finances alone does not establish that someone cannot make a will.

A dementia diagnosis does not automatically mean someone lacks testamentary capacity. The question is whether the person can understand and weigh the decisions involved in making their will at the time those decisions are made. For example, someone may need help with everyday financial matters yet still understand their previous will, assets and intended beneficiaries.

If capacity to make a will is lacking, the Court of Protection considers whether a statutory will, and its proposed terms, are in the person’s best interests. Section 1 of the Mental Capacity Act 2005 requires acts for a person lacking capacity to be in their best interests. Under the Mental Capacity Act 2005, the decision-maker must consider all relevant circumstances when deciding what is in P’s best interests, rather than relying merely on age, appearance or assumptions.

Section 4(6) requires consideration of the person’s past and present wishes and feelings, beliefs and values, plus matters they would likely consider if they had capacity. Section 4(7) addresses the views of relevant parties, where practicable and appropriate, including people the person named, carers, an attorney or deputy. These views inform the decision; they do not replace the person’s own wishes.

A statutory will application differs from making or changing a will while someone has capacity. A person with testamentary capacity makes their own will decisions; a statutory will is considered when they lack that capacity. The application evidence should explain the capacity assessment and how the proposed arrangements serve the person’s interests.

Statutory wills and disputed will validity

A statutory will application and a challenge to an existing will address different legal questions. Under the Mental Capacity Act 2005, the Court of Protection decides whether a proposed will is in the person’s best interests. It does not decide whether an earlier will was valid. In Re M [2011], the Court held it lacked jurisdiction to determine that issue.

This distinction matters when relatives dispute a previous will while the person is still alive. The Court may approve a statutory will that revokes an earlier will, but its decision concerns the new will and the person’s circumstances. A solicitor assessing the matter must distinguish evidence supporting the proposed terms from arguments about whether the previous will was validly made.

The Court’s approach can also depend on the person’s present wishes and recent decisions. In Re Peter Jones [2014], the Court considered whether making a statutory will after P had recently made a will could undermine autonomy and impose a paternalistic view of best interests. That illustrates why a previous will and the timing of changed circumstances can be relevant, rather than simply evidence of a family dispute.

Contesting a statutory will application means raising concerns before the Court approves the proposed will. A challenge to an existing will’s validity is a separate dispute, usually addressed after death through probate proceedings. The Court of Protection has no jurisdiction over a statutory will application after the person dies, so a pending application will be dismissed. The timing of the dispute determines which court can decide the issue.

Keep the two questions distinct: is the proposed statutory will in the person’s best interests, or was an existing will valid? Evidence relevant to one does not automatically answer the other. For help assessing a will or probate dispute, speak to a solicitor about your options.

Feltons Solicitors LLP: Wills, Probate, and Estate Planning

Feltons Solicitors LLP can help you assess whether your concern relates to a proposed statutory will, an existing will or a later probate dispute. Its Wills, Probate, Trusts and Estate Planning service can help you understand the legal options, organise information about the person’s wishes and estate, and consider how an existing will affects the situation.

Early legal advice can clarify which issue needs attention. A statutory will application concerns a person who lacks testamentary capacity; a challenge to an existing will’s validity raises a separate question. Keeping these issues distinct can help families focus on the relevant evidence and next steps.

If you need advice about a will or probate matter, contact Feltons Solicitors LLP.

Before taking further action, define the outcome you are seeking and whose interests the decision affects. In contested statutory will applications in the UK, separating the proposed arrangements from concerns about an earlier will can help relatives explain their position clearly and focus on the issue the Court can decide.

A practical next step is to organise the documents and concerns around that objective. This may include the existing will, information about the person’s circumstances and a clear account of what relatives disagree about. A solicitor can help assess whether the matter concerns a statutory will application, will validity or another estate issue, and identify a proportionate way forward.

Feltons Solicitors LLP offers Wills, Probate, and Estate Planning, as well as Litigation and Dispute Resolution. If you would like advice on the legal options for your circumstances, contact Feltons Solicitors LLP for advice. A clear understanding of the issue can help you approach the next conversation with greater confidence.

Frequently Asked Questions

What is a Statutory Will?

A statutory will is a will authorised by the Court of Protection for someone who lacks testamentary capacity. It sets out how that person’s estate should pass, including where an earlier will no longer fits their circumstances. For example, a major change in family relationships may prompt an application proposing different beneficiaries. The Court must approve the will before it takes effect.

How can I contest a Will?

First, identify whether you object to a proposed statutory will or dispute the validity of an existing will. During a statutory will application, an interested person can make representations, explain their concerns and support them with relevant information. A validity dispute is separate and generally arises after death. For example, evidence about how an existing will was made relates to that validity issue, not automatically to the statutory application.

How does the court make a decision?

The Court of Protection decides whether the proposed will and its terms are in the person’s best interests. It weighs the person’s wishes and values against practical circumstances, including the likely effect of the proposal compared with an existing will or intestacy. For example, a proposed change may need to be considered alongside the person’s previous intentions and the interests of those who could otherwise inherit.

How long does the process take?

A statutory will application generally takes several months, and a more complex or contested matter may take longer. Cases can take six to 12 months, particularly where objections require further evidence or a hearing. The person’s health can affect urgency: an application may be expedited if they may not live long. A pending application is dismissed if the person dies before it is heard.

Is legal advice necessary?

A solicitor’s advice is not identified as a formal requirement for making an application, but legal guidance can help with the draft will, evidence and procedure. The application involves court forms and information affecting the person and potential beneficiaries. Solicitor advice has a cost; some organisations, including Citizens Advice Bureau, offer free advice. Consider what support is needed to understand the proposed terms and respond to objections.

What happens after the application is made?

After the application is filed, relevant people are notified and can respond to the proposed arrangements. The Court may decide the case on the papers or list a hearing to examine objections or evidence. If approved, the statutory will is executed on the person’s behalf and sent to the Court for sealing. The sealed will has the same legal effect as a will made by the person themselves.