Whose Responsibility is it to Get Probate?
27 January 2017
When a friend or family member passes away, there may be a requirement to obtain a Grant of Probate or Letters of Administration. Whose responsibility it is depends on a number of circumstances.
The first thing to check is whether the deceased person left a valid Will. If they did, it is likely that they would have appointed between one and four Executors. Executors are the people or organisations who are responsible for obtaining Probate and dealing with the Estate administration process.
Often, someone will appoint a person who is close to them, either a friend or family member. This will be someone they trust to look after their affairs once they pass away and who will ensure that their Estate is dealt with as they wished. These people are called Executors to the Will.
In some circumstances, people may appoint a firm of Solicitors or a Trust Corporation as an Executor. A substitute Executor can also be appointed and will only be able to take the place of the nominated Executors if they are unable or unwilling to take on the responsibility of being Executor. The substitute Executor can then step in and obtain Probate and administer the Estate under the terms of the Will.
If someone dies without leaving a valid Will, it will usually be their next of kin who will have the responsibility of obtaining Probate. In these circumstances, the law dictates who will be able to obtain Probate.
There is an Order of Entitlement which determines who is allowed to apply for Probate. The first is a married spouse or civil partner. If there is no partner then one or more children can apply, or if there are no children then responsibility falls to a parent of the deceased.
If no parent is surviving then the deceased's whole siblings (meaning they share the same parents) can apply, after which their nieces and nephews can. If this is not applicable, responsibility falls to half siblings or their children, or if there are no half siblings or children, then grandparents can apply. If there are no grandparents, it would be the responsibility of uncles or aunts.
It is important to consider that this may not be the person who the deceased would have chosen if they had been able to make the choice by leaving a valid Will. The most common example of this is if you are a long term partner, but are not married to the deceased, you will not be able to apply for Probate. It would be the responsibility of the persons above and in that order.
Once it has been established whose responsibility it is to obtain Probate, that person will have to make an application to the Court themselves or to appoint specialist Probate Solicitors to do this on their behalf. For example, with our Probate Complete Service we take full responsibility for getting the Grant of Probate and dealing with the Legal, Tax (excluding VAT), Property and Estate Administration affairs.
At Co-op Legal Services our Probate team includes over 170 staff of Probate Solicitors, Lawyers, Case Handlers, Advisors and Consultants; all working to provide closure for bereaved family and friends as soon as possible.