The law relating to a Grant of Probate following the death of a loved one in a fatal accident at work or fatal road accident can be found in the Fatal Accidents Act 1976.
It is an archaic piece of legislation, in our view that is in desperate need of updating. The law is unjust and unfair and does not take into account modern family living. The law as it stands primarily under the Fatal Accidents Act 1976, protects insurance companies who are duty bound to pay reasonable compensation but instead the Conservative Government intends to make it difficult for bereaved families to gain access to justice by increasing court fees, cutting fatal accident solicitors costs and making bereaved families pay up to 25% of their compensation to the solicitors. At a time of need, the law lets down bereaved families.
There are two types of people who will apply for the Grant of probate (if one is required in a fatal accident act claim) but before we consider this, it is necessary at this stage just to explain what a Grant of Probate is, in simple terms.
What is a Grant of Probate?
A Grant of Probate is simply a formal document issued by the Court to enable (usually the next of kin) to deal with the financial affairs of the deceased. It ‘grants’ them authority to deal with the sale of assets such as the house, get access to bank accounts etc. The Grant informs the Court who the beneficiaries are and those entitled under the deceased estate.
Did the Deceased Leave A Will?
The beneficiaries of the deceased estate (usually the ‘next of kin’) will be set out in any Will the deceased may have left. The application for the Grant will then have a copy of the will attached to the Court documents to confirm the deceased wishes and who will benefit from the deceased estate. The person(s) who then have authority to deal with the deceased estate under the Grant are called ‘executors.’
If there is no will, those person(s) entitled will be followed by a strict laws of ‘intestacy’ again this is most commonly known as the ‘next of kin.’ Thus if a husband dies, the Wife will be the next person entitled to the late husband’s estate. Another example is that if a single parent dies, the parent’s estate will then belong to the child(ren). A person(s) who then applies for the Grant is called the ‘administrator.’ If a child is the next of kin, (a child in law is a person under the age of 18 years) then an adult can be appointed to act of the child’s behalf.
Timing of Obtaining the Grant of Probate
The Fatal Accidents Act 1976, provides that an executor (if there is a will) or administrator (if there is no will) should apply within 6 months from the date of death.* If no application is made, then a dependent of the deceased can apply and issue court proceedings. A dependent is usually, again, the next of kin of the deceased.
*Section 2 of the Fatal Accidents Act 1976
Do You Need To Apply For A Grant Of Probate Following A Fatal Accident Claim?
If Death was instantaneous – no compensation:-
A dependant making a claim under the Fatal Accidents Act 1976 cannot recover any losses or expenses priory to death. If death or for the any pain and suffering of the deceased prior to death. Thus if the fatal accident was such that death was immediate or virtually instantaneous the Fatal Accidents Act 1976 does not make any provision for compensation. This is so even if the deceased was in a coma before death. To us, the fatal accident claim solicitors this is just another unjust element of the law that needs changing. A life, the quality of life of the deceased and the traumatic experience of family and friends are all affected.
If Death was not instantaneous – compensation payable:-
If death was not instantaneous for instance there there was a period of pain and suffering prior to death such as suffering from an asbestos related condition, a claim can be brought under the Law Reform (Miscellaneous Provisions) Act 1934. As compensation payable is for the pain and suffering of the deceased, it means that this will form part of the deceased ‘estate’ and thus forms part of the deceased ‘assets,’ just like a house, investments and money in a bank account. In this case, the fatal accident claim solicitors will need to apply under the 1934 Act to obtain the Grand of Probate or Letters of Administration (if there is no will).
Funeral Expenses – These can be claimed under the 1934 Act or under the Fatal Accidents Act 1976 under section 3(5). If both Acts are being pursued by the fatal injury solicitors, then double recovery is not allowed.
Can the Costs of The Grant of Probate Be Recovered As Compensation?
Once again, an unfortunate fatal accident decision against bereaved families can be found in the case of Mosson v Spousal (London) Ltd (2015) EWHC 53 (QB) where the High Court was of the view that the cost of probate under the 1934 Act does not make any provision to recover those expenses. It was discussed that in many instances there may be other reasons to obtain a Grant of Probate other than taking court action (this is an unjust comment in our view as had it not been for the fatal injury, probate would not have been required in any event). Further, in fatal accident claims where the compensation is relatively low to the estate (that is where the death was not instantaneous but there was only a limited period of pain and suffering) the costs of obtaining the Grant of Probate plus solicitors costs and the increase in court fees, the probate costs may be disproportion and not financially worth pursuing. Once again an unjust area of the law when one considers fatal accident claims.
Thus a death with a few hours to a few weeks of pain and suffering following the fatal accident only attracts a few hundred to a few thousand pounds. It is not enough and this area of the law will have to change in so far as the compensation award. But to add insult to the bereaved families, the limited amount of fatal accident compensation payable for the suffering prior to death may not be financial worth pursuing due to the fact that the family will have to apply for probate to recover the compensation under the 1934 Act and such fees are not recoverable according to the judge in Mosson. It is hoped that this judgement is overturned by another Judge or Higher Court.
Cost of Applying for Probate
The Conservative Government has dramatically curtailed access to justice for personal injury claims that include a claim for a fatal injury. The Government has cut the costs that solicitors can charge the guilty party if they win the case making it difficult to undertake all necessary work without cost penalties. In addition, fatal accident solicitors now are forced to take a cut of the bereaved families compensation due to the restriction of costs.
In addition to the cost cutting exercise designed to save insurance companies money (but leaving devastated families out of pocket) the Conservative Government has also drastically increased the court fees bereaved families have to pay for a Grant of Probate.
Thus as at 2015 and at the time of writing in 2016, the fee for the Grant of Probate are as follows:
- If an fatal accident claim solicitor is instructed, the Grant will cost £155 (increased from £45).
- A family member applying, the fee will is £155 plus a personal application fee of £60 making a total of £215.
- Additional formal copies of the Grant (you will usually need multiple copies to provide to the mortgage company, banks and building societies etc) there is a copying fee if applied for at the time of the grant of 50p.
Have You Been Affected?
If you would like to obtain more information or require advice from specialist fatal accident claim solicitors, please contact us.
Even if you are not directly affected, a family member or friend of those who you are concerned about, why not call us and see if we can help.
We are here to support bereaved families and we work under a no win, no fee, solicitor service so there is nothing to worry about if the case fails.