Brian and Sky, explaining how their Probate Case Manager helped them following the death of Sky's parents
Probate without a will
If someone dies without a valid will, the law determines who is responsible for probate and who is entitled to inherit.
Dealing with probate where there is no will
When an adult dies in England or Wales, their assets such as their property, money, financial affairs and possessions must be liquidated (sold) or transferred, their debts settled and what's left paid to their beneficiaries. This process is known as administering the estate, or probate.
The actual process of probate and estate administration is much the same regardless of whether or not there's a will. This means that there’s no real difference to the length of time it takes if someone dies having left a will or dies intestate (meaning they've died without a will).
The only difference is that the deceased's estate will be distributed under the terms of the law if there isn't a will, which might not align with their or their loved one's wishes. This can add complexity to the estate administration process.
When there's no will the law decides who inherits
When someone dies without a valid will, this is known as dying intestate. In this situation, the people who benefit from the estate are determined by inheritance rules called the rules of intestacy. Under these rules, the law will determine who inherits what and who can administer the estate.
Dealing with probate without a will can be an involved and complex process, as the family tree will need to be very clearly understood. Intestacy rules don’t always allow for modern family relationships and certain relatives, such as step children and unmarried partners, aren't recognised.
Due to the complexities of the rules of intestacy, it can be complicated to deal with probate when there is no will. There can be a greater risk of mistakes being made in the identification of the estate administrators and beneficiaries. Estate administrators can be held personally financially liable for any loss resulting from a breach of their duty, even if they were genuine errors.
Grant of letters of administration
When probate without a will is needed, an application must be made to the court before the legal administration of the estate can begin. The person responsible for administering the estate is called the administrator, and they need to apply for a document called a grant of letters of administration.
What are letters of administration?
A grant of letters of administration is a document issued by the probate registry, which gives the administrator the legal authority to deal with the estate.
Once this document has been received, the process of administering the estate can begin. To find out what this involves, see administrator duties explained.
When is a grant of letters of administration needed?
A grant of letters of administration won't always be needed, it depends what the person owned when they died and who is inheriting it. This is because some assets can be dealt with without a grant of letters of administration, and banks will release a certain amount of money without asking for this document. Each bank has their own threshold for probate. For more information, see bank limits for probate.
A grant of letters of administration will always be needed to deal with a property owned in the sole name of the person who died or to deal with large amounts of money.
If this document is needed then without it no one will be able to access the assets in the estate without it. This means bank accounts can't be closed down and property can't be sold.
How to get a letter of administration
To apply for a letter of administration you need to have details of everything the deceased person owned and how much this is worth, as well as their outstanding debts. You will need this information to complete the Inheritance Tax returns and calculate any Inheritance Tax that needs to be paid to HM Revenue & Customs.
When making the application for a letter of administration, you will need to provide the original death certificate, the inheritance tax forms and the fee to the Probate Registry.
What’s the difference between letters of administration and grant of probate?
The main difference is that a grant of probate is issued to the executor named in the will, whereas a grant of letters of administration is issued to the next of kin, who is called the administrator.
Other than this, the two documents work in a very similar way, in that they both give the named person legal authority to administer the estate.
How long does it take to get a grant of letters of administration?
The length of time that it takes to obtain a grant of letters of administration can vary dramatically. This will depend on the complexity of the situation, whether searches for a potential will need to be carried out and who the surviving relatives of the deceased person are (if any).
If the person who died has a surviving husband, wife or civil partner, this will be their main beneficiary and their administrator under the rules of intestacy. In this situation, probate is likely to be more straightforward.
If the person who died only has distant relatives and these relatives cannot be easily identified or located, then this could delay the process. Before the grant of letters of administration can be applied for, the appropriate administrator needs to be identified.
Once the administrator has been identified, they will need to calculate whether or not Inheritance Tax is payable on the estate, and then apply for the grant of letters of administration.
Specialist probate solicitors
Probate without a will can be dealt with by specialist probate solicitors.
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