Who Does What in Probate?
22 November 2017
Probate is the legal process of dealing with somebody’s assets after they have died. Probate involves a number of different roles. Below is a brief explanation of the most common roles, and some of the things that you will need to consider if you find yourself in one of these roles:
The Testator is the person who created the Will, then their death has triggered the Probate process. Should a person die without leaving a Will (known as dying Intestate) then they may be referred to as the ‘Intestate’ instead.
Executor / Personal Representative
The Executor is the person who has been appointed by the deceased in their Will to have the legal authority to deal with their assets and finances after they die. The assets and money belonging to the deceased are often referred to collectively as the deceased’s Estate.
The role of an Executor, also known as a Personal Representative, is to ensure that the deceased's Estate is dealt with in accordance with the law and in line with the wishes of the deceased person’s Will.
If you are appointed as an Executor, you broadly have three options. You can:
- Administer the Estate using the legal authority given to you by the Testator’s Will (this can either be done in your name, or by donating your limited power to a Solicitor, organisation, or another person to administer the Estate on your behalf)
- Allow another person appointed as an Executor to administer the Estate, with your knowledge that they are doing this. This is often called having your Power Reserved to you, and you can step in to become the lead administrator if the other Executor becomes unable or unwilling to complete the administration process
- Give up your power to administer the Estate. This is called Renunciation as Executor of a Will.
Where the person who has died did not leave a Will, the Rules of Intestacy set out who the legal Next of Kin is. Legal Next of Kin follows a set order, and is nothing to do with who the deceased person used to call their next of kin. For more information see the Rules of Intestacy explained.
The Rules of Intestacy can be harsh as they often don’t allow for modern family relationships. They recognise that the legal Next of Kin will be the only people who are entitled to administer, and inherit from, the Estate. So in Probate cases where no Will was put in place, unmarried couples, unregistered partners, step children and step brothers and sisters will not inherit anything at all.
The role of an Administrator, also known as a Personal Representative, is otherwise the same as the role of an Executor. For more information see Executor / Administrator Duties explained.
When an Estate requires Probate, a beneficiary is someone who is entitled to inherit from the Estate. The beneficiary could have been named in a Will to inherit a specific amount of money, one or more of the assets or all of the Estate that remains after outstanding debts have been paid. If no Will was in place, then the beneficiaries will be determined by the Rules of Intestacy.
If you are a beneficiary but not an Executor or Administrator of the Estate, you will not need to get involved in the Probate process. The person responsible for Probate is responsible for making sure that you receive exactly what you are entitled to.
Trustees are appointed either where there are beneficiaries who are under 18 years of age, and as such are not old enough to be given their inheritance, or where the deceased has left a Will which uses a Trust. In these circumstances, you could find that you have been appointed as a Trustee.
The Trustees legally own the assets that are held in Trust and they have to ensure that they carry out the terms of the Trust and act in the interests of the beneficiaries. The Trustees are responsible for making decisions on how to use the assets in the Trust. They must ensure that these decisions align with the terms of the Trust and the statutory obligations that they have as a Trustee.
With our Probate Complete Service we take full responsibility for getting Grant of Probate and dealing with the Legal, Tax (excl VAT), Property and Estate Administration affairs*.
If you have lost a loved one, and you need help with the Probate process, call our Probate Advisory team for free initial advice and guidance. We can arrange for one of our Probate Consultants to meet you at your home or workplace (in England or Wales) to discuss the Estate of your loved one in more detail, and to provide you with a fixed fee Probate quote for dealing with Probate from start to finish.
*We can also 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.