How Does Probate Work When there is No Will?
17 November 2017
If Probate is needed but the person who died did not leave a valid Will, the Administrators of the Estate must apply for a Grant of Letters of Administration. This information applies in England and Wales.
When Probate is needed after someone dies, you must find out whether or not there is a Will. This is because it will influence the way in which Probate is carried out.
If there is a Will, things are little more clear-cut. For instance, you’ll know who is responsible for obtaining Grant of Probate and administering the Estate, because the deceased will have appointed Executors in their Will. You’ll also know who should inherit from the Estate, as the deceased will have named beneficiaries in their Will.
But if there isn’t a Will, the deceased’s wishes won’t be set out in a legally valid document, so the law must determine what happens instead. Under inheritance laws called the Rules of Intestacy (explained further below), when there is no Will, the law decides who gets what.
By making a Will you set out what happens to your Estate when you die, including your pets; rather than leaving it up to the government.
Choosing Administrators of the Estate
The first thing the law will decide is who can apply for Probate and administer the Estate. Where there is no Will, this person is called the Administrator.
According to the law in England and Wales, one of the deceased’s beneficiaries may take on the role of Administrator. The beneficiaries are decided by the Rules of Intestacy, and they follow a strict order of priority which sets out who benefits most from the Estate.
Therefore the person who applies for Probate will be someone who is entitled to inherit under the Rules of Intestacy. If you cannot decide who this should be, priority is given to the deceased’s next of kin. So if the deceased was married and their husband or wife is still alive, he/she is entitled to be the Administrator above anyone else.
With our Probate Complete Service we take full responsibility for getting Grant of Probate and dealing with the Legal, Tax (not VAT), Property and Estate Administration affairs.
Grant of Letters of Administration
Once the Administrator has been decided, he/she must make an application to the Probate Registry for a Grant of Letters of Administration. This is slightly different if there is a Will, in which case it’s necessary to apply for a Grant of Probate; which includes sending copies of the Will to the Probate Registry.
If the Administrator is applying for Probate as an individual, rather than using a Probate Solicitor, he/she will need to fill out a Probate application form PA1. This must be sent to the Probate Registry along with:
- An official copy of the death certificate
- The Probate Registry fee
- An Inheritance Tax form.
The Administrator will also have to swear an Oath, and in some instances attend an interview at a Probate Registry office.
Administering the Estate
Once a Grant of Letters of Administration has been issued, the Administrator can then set about finalising the Estate. This is much the same as it would be if the deceased had left a Will. There are a number of tasks to complete, such as selling or transferring property, closing down bank accounts, calculating and paying any Inheritance Tax due; and paying outstanding debts.
Distributing the Estate
When all of the above has been done, the Administrator can then distribute the Estate to the beneficiaries. As mentioned above, the beneficiaries will be decided by the Rules of Intestacy. These determine who is entitled to receive a share of the Estate, and in what proportion.
The Rules of Intestacy put relatives into an order of priority and who receives what depends on the size of the Estate and which relatives survive the deceased. So the Estate may be shared between a number of different beneficiaries – and each may be entitled to receive differing amounts.
The Rules of Intestacy can become complex. However, it’s important that the Administrator follows the law carefully, or a beneficiary could claim that he/she has not received their rightful share of inheritance. If so, the Administrator could be held accountable.
The Administrator could also be held accountable for any mistakes made in the Estate accounts, dealings with HM Revenue & Customs; or in the Estate administration process.
Our Probate Complete Service takes the responsibility off your shoulders. There are no upfront fees and we can pay all the costs of a Co-op Funeralcare funeral, providing the Estate owns sufficient assets which can be sold in due course to repay our costs.
Co-op Legal Services is the largest provider of Probate and Estate Administration services in England and Wales, trusted to deal with over £1.3 billion in Estates annually.
Our Probate team includes over 170 staff of specialist Probate Solicitors, Lawyers, Case Handlers, Advisors and our national network of Probate Consultants; all of whom only deal with Probate.