Litigation on behalf of an estate

What happens if a person dies while in the midst of litigation, and to what extent can (and should) their Executors progress it or seek an early settlement? What are the risks involved for the Executors, and could they incur personal liability for the actions they take?

Background and overview

When an executor or personal representative (PR) administers the estate of a deceased person (the Estate), one of the issues they will need to consider is whether any claims arose during the deceased’s lifetime and should be brought after their death.

We will consider the factors to take into account in this context. Other similar, though not identical, factors would come into play for the PR(s) when it comes to i) defending ongoing litigation, and/or ii) considering claims relating to the validity of the Deceased’s Will. In these cases, a PR may be well-advised to take a neutral stance and allow the other parties with competing interests to advance the litigation.

We will focus here on PRs who need to issue claims. Pursuing litigation is never easy, and the decision-making process for PRs is often particularly difficult in the immediate aftermath of the deceased’s death. It is essential, however, that PRs take professional advice at an early stage in order to maximise the value of the deceased’s Estate and protect their personal position. 

Responsibilities

PRs have a legal and fiduciary duty to act honestly, fairly and efficiently in managing an Estate. This includes identifying and collecting assets, settling the deceased’s debts and taxes and distributing the remaining assets to the appropriate beneficiaries. For further information about the probate process, please see our briefing note, “Steps in the administration of an estate”, here.

The PRs have a duty to act in the best interests of the Estate, which may include pursuing litigation to recover assets or settle disputes. At an early stage, PRs may need to seek legal advice and support from solicitors to ensure they are: i) fulfilling their responsibilities; ii) acting appropriately in pursuing litigation; and iii) minimising the risk of personal liability for action (or inaction) in respect of such litigation.  

The PRs would also need to consider – and report to HMRC as part of their Inheritance Tax (IHT) reporting obligations – the value of the claim itself. This would require professional advice as to the merits of the claim and its value as at the date of death of the deceased. If and when the claim succeeds, depending on the value received by the Estate, it may be necessary to update HMRC and pay additional (or reclaim some) IHT.

Limitation periods

For most claims, the usual limitation period is six years from the date the claim arose, but this can sometimes be extended. If a claim is brought outside of the limitation period, it will not succeed.

If a claim arose during the life of the deceased, it is possible there may be a limited amount of time left to bring that claim. PRs will therefore have to work quickly to identify possible claims that need to be brought; otherwise, they could be criticised for not collecting in an asset or taking prudent steps to preserve the claim (and therefore the value of the Estate).

Standing to bring the claim

The next thing the PRs will need to think about carefully is whether they have the right to bring the claim at all.

An executor named under a Will is granted the authority to manage the Estate’s assets, which includes pursuing claims on behalf of the deceased. This means that the executor will not need a Grant of Probate in order to issue a claim, but they will need to make sure they have obtained one by the time the claim gets to trial because no order or judgment can be made by a court without the Grant of Probate.

If there is no Will, a PR must be appointed, who then has the authority to act on behalf of the Estate. Broadly speaking, the person entitled to apply to be PR and obtain Letters of Administration will be the person due to benefit under the intestacy rules. The first priority is any surviving spouse, then a child of the deceased, then a parent, and then other relations of the deceased.

Letters of Administration will be needed before the PR(s) can validly issue the claim. This can be a serious problem if limitation periods are running out. In those circumstances, the prospective PR(s) should move as quickly as they can to obtain the Letters of Administration. In the meantime, they could issue the litigation in their own names and then make an application to the court under CPR17.4(4) to have their position perfected once they get the grant. This is, however, a discretionary application and so the PR(s) will need to have done all they can to show the court they deserve the application to be granted.

Alternatively, and particularly if matters are urgent or contentious, it might be appropriate for a different grant to be obtained:

• Executors or PRs may apply for a limited grant which will last until the claim has been settled and will enable them to take such steps as are necessary to progress the claim pending issue of the full grant. A second grant would then be needed to complete the administration of the Estate and distribute any proceeds of the litigation.
• If there is a dispute about a Will or who has the right to apply for a grant, deciding who has standing to issue a claim can be very difficult. In these circumstances, it might be prudent to apply for a grant pending suit (“pendente lite”) to have an independent professional administrator (such as a solicitor or trust corporation) appointed to pursue litigation and manage the Estate while the dispute is litigated.

The appointment of an independent administrator in a limited capacity can be appropriate even in uncontested circumstances to allow PRs named in the Will (or those entitled to be PRs following an intestacy) to step aside. This can be particularly helpful if they are worried about their personal liability, potential criticism from the Estate’s beneficiaries or simply keen to avoid the often significant stresses that come with being involved in active litigation.

Other factors to consider

Before embarking on litigation, PRs should consider the following practical steps:

• Gathering evidence including reviewing the deceased’s papers and reviewing email accounts where possible.
• Obtaining legal advice on the merits of the claim to ensure the chances of success are proportionate to the possible amount that can be recovered and the costs of the claim itself.
• Asking the beneficiaries for their views on proceeding with the litigation, to ensure that they are happy with the decision to issue a claim including the likely costs involved. PRs may also want to consider getting court approval of their proposed course of action if time allows.
• Consider mediation and other forms of dispute resolution rather than fully contested proceedings. This can include entering into a standstill agreement with potential defendants to extend the time in they have to bring a claim. However, the person entering into the agreement needs to be capable of representing and binding the Estate, which can be an issue before any formal grant is obtained.

Litigation can seem overwhelming for families and PRs so soon after a loved one’s death, but taking quick steps to preserve claims can decrease the stress and anxiety for everyone involved in the long run and can be a necessary step to preserve Estate assets.  

This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.

© Farrer & Co LLP, June 2025