If probate is needed on your loved one’s estate but they didn’t leave a Will, you have to apply for a Grant of Letters of Administration. The application should be made by the deceased’s closest living relative.
Is probate needed if there isn’t a Will?
There’s a common misconception that probate isn’t needed if the deceased died intestate (meaning without a valid Will in place). Actually, this isn’t true. It doesn’t matter whether or not there’s a Will – probate may still be needed either way.
When is probate needed?
Probate is needed if the deceased:
1. Owned assets over a certain value; and
2. These assets were held in their sole name, or as tenants in common
If you’re not sure whether probate is needed following your loved one’s death, call us on 0191 567 7244 and we’ll be happy to help you. If you would rather contact us online, email us at demi@cooklaw.co.uk .
How does probate work if there isn’t a Will?
If probate is needed on your loved one’s estate, but they didn’t leave a Will, then there’s a certain process you must follow.
First, you have to work out who is allowed to apply for probate. If there had been a Will, it would have named executors, and these people would have been responsible. In the absence of a Will, the law states that the application must be made by the deceased’s next of kin.
The person allowed to apply for probate when there is no Will is called the ‘administrator’. This is usually a spouse, civil partner or child. Unmarried partners cannot be considered the deceased’s next of kin, as common law spouses are not recognised in England and Wales.
The next step is for the administrator to estimate the estate’s value and report it to HMRC. This has to be done, regardless of whether or not there’s a Will. Our solicitors can help you with this. Afterwards, the administrator can apply for probate, or you can ask a solicitor to do it.
An application is made to the Probate Registry online or by post. Because there is no Will, you have to apply for a Grant of Letters of Administration, rather than a Grant of Probate. This is simply a matter of ticking the right box.
The Probate Registry will review the application. If everything has been completed properly, you will get the death certificate back, along with a document called a Grant of Letters of Administration.
The Grant allows the administrator to start winding up the deceased’s affairs. This means you can access the deceased’s bank accounts, sell their property and distribute their estate to their beneficiaries.
Is probate different if there is no Will?
Therefore, the probate process is much the same, regardless of whether there’s a Will.
The main differences are that if there is no Will:
1. The law decides who must apply for probate. This is the deceased’s closest living relative, who for the purposes of probate is called the ‘administrator’
2. The administrator must apply for a Grant of Letters of Administration
3. The law determines who the beneficiaries are, irrespective of any wishes the deceased expressed during their lifetime
On the other hand, if there is a valid Will in place, then:
1. The deceased’s Will states who should apply for probate. These are the people named as executors in their Will
2. The executor(s) must apply for a Grant of Probate
3. The Will determines who the beneficiaries are and what they will receive
Instruct Cook Law Solicitors
If you would like help with a probate application, call us on 0191 567 7244 or at demi@cooklaw.co.uk and we’ll be happy to help. We represent both executors and administrators who have been tasked with a probate application and estate administration.