We understand that making a compensation claim for medical negligence after losing a loved one can be an incredibly difficult journey for families. The sudden and unexpected loss can leave families feeling overwhelmed and vulnerable, and we recognise how daunting the litigation process can be during such a painful time.
One concern that often arises in these situations is the absence of a Will, which can add to the stress of an already challenging situation.
What is a Will?
A Will (or Last Will and Testament) is a legal document where a person:
- Declares how their money, property, and possessions (their "estate") should be divided and managed after their death;
- Names an executor to carry out their wishes; and
- Chooses beneficiaries (family, friends, charities) to inherit their estate.
What is a Grant of Representation?
A Grant of Representation is a legal document issued by the Probate Registry in England and Wales that grants a person the authority to manage the deceased’s estate. There are two main types of Grants of Representation
- A Grant of Probate
- A Grant of Letters of Administration
These documents are particularly important in fatal medical negligence cases, as they enable claims to move forward and compensation to be obtained.
What is a Grant of Probate?
If the deceased left a valid Will naming an executor—often a family member or a solicitor—the executor can apply for a Grant of Probate. This Grant confirms the validity of the Will and provides the executor with the legal authority to:
- Collect assets
- Pay debts and taxes
- Bring claims for medical negligence, financial loss, or breach of contract that the deceased may have suffered before death.
- Distribute the inheritance according to the Will
Example: a deceased person dies due to a delayed cancer diagnosis that may involve negligence. The deceased person has a valid Will and names the spouse as the executor, so the spouse can obtain a Grant of Probate. This Will allow the spouse to pursue a medical negligence claim on behalf of the estate, addressing the person's pain and suffering prior to their death.
What are Letters of Administration?
If there is no Will (otherwise known as “intestacy”) or the Will does not name an executor, the next of kin (e.g., spouse or child(ren)) can apply for a Grant of Letters of Administration and they are known as administrators. Their authority is similar to an executor who has obtained a Grant of Probate, but administrators must follow legal guidelines (intestacy rules) for distribution of the estate.
Example: a deceased person dies in surgery due to an error with no Will. Their son applies for Letters of Administration to manage the estate and pursue a medical negligence claim on behalf of the estate, again addressing the person's pain and suffering prior to their death.
Timing of applying for a Grant
When a loved one has died, it can come as a surprise to learn that certain legal steps need to be taken before a medical negligence claim can formally begin. One of the most important is applying for a Grant of Probate or, where there is no Will, a Grant of Letters of Administration.
This is not about creating delay or additional burden at an already difficult time. It is a legal requirement that ensures the claim is brought by the person who has the proper authority to act on behalf of the deceased’s estate. Without that authority, the Court will not allow a claim to be started or “issued”.
For that reason, applications for a Grant are usually made at the very beginning of a medical negligence case. Doing so helps avoid complications later and ensures that investigations, expert evidence and formal legal steps can proceed correctly and without interruption.
As a rule, if a person has died because of medical negligence, the person who is eligible to act on behalf of their estate has 3 years from their date of death to pursue a claim.
Therefore, it is important to obtain the Grant of Representation sooner rather than later. To delay obtaining the Grant risks the overall limitation period expiring before a claim can be fully pursued or settled, potentially losing the opportunity to obtain compensation on behalf of the deceased’s estate. Applying early helps avoids this risk and allows solicitors sufficient time to begin investigating a potential claim.
Trainee Solicitor, Yusuf Takoliya observes: “Quite often, families are unable to pursue a medical negligence claim on behalf of their deceased loved one because they seek advice too late (missing the 3-year limitation period) or because obtaining the Grant of Probate or Grant of Letters of Administration takes longer than expected. Delaying can mean a claim on behalf of the estate is time barred and we are unable to represent the family. That’s why it’s crucial that if family members suspect potential negligence, they should obtain legal advice as soon as possible—so a specialist can make families aware of the steps they will need to take”.
Important Note
Probate rules can be complex, involving applications, costs, and strict time limits. As a specialist medical negligence law firm, we do not specialise in probate matters. We strongly recommend consulting qualified probate solicitors for personalised guidance on how to apply, expected costs, timelines, and any deadlines specific to your situation. They can ensure everything is handled correctly.
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