Report topic or post

The process of probate is conducted after a person dies. Their property, money, financial affairs and possessions are sold or transferred, any outstanding debts are settled and whatever’s left is then paid to their beneficiaries.

This process takes place regardless of whether or not there is a valid will in place. If there is no will and therefore no named executor, a slightly different probate procedure applies.

Probate without a will: who should apply?

When someone dies intestate, the person who stands to inherit the most under the rules of intestacy is usually responsible for applying for probate.

In cases where two or more people are equally entitled to apply for probate – for example, the children of the person who died – you can either apply together (maximum of 4 people) or alone.

When applying for probate without a will, the document you need to apply for is called a grant of letters of administration.

What happens In Probate when there is no will?

The actual process of estate administration remains similar regardless of whether or not the deceased left a valid will. However, it can often be a much more lengthy and challenging process to administer an estate when there is not a valid Will that can be presented to the Probate Registry.

When someone dies without a will then they have died intestate. When this is the case, the deceased’s estate is distributed under the terms of the law. This often means that the distribution of assets are often not in line with the wishes of the deceased or those closest to them. This can often add complexity to the administration process and, in some cases, can lead to disputes which can drag on for a considerable amount of time.

For this reason, we strongly advise your clients ensure they have a will in place if they own property, have a family or have substantial assets.

Can you get Probate without a will?

If a person dies without a valid will an application will need to be made to the court to enable the legal administration process to begin. The person responsible for carrying out the administration is known as the administrator. In order to carry out their duties, they will need to apply for a grant of letters of administration.

This is a document that’s issued by the probate registry giving the administrator the legal authority they need to access accounts, handle property and carry out their duties associated with the estate. It fulfils the same role as a grant of probate which is issued when there is a will with a named executor.

The grant of letters of administration will be required to deal with a wide range of assets with many banks setting a threshold as low as £5,000. The only time this will not be required is if the person who died had very few assets. Until the grant of letters of administration is received, bank accounts cannot be closed down and property cannot be sold.

When this application is made you will usually need to provide the original death certificate, inheritance tax forms and a fee to the Probate Registry.

The length of time that it can take to obtain a grant of letters of administration can vary depending on the size and complexity of the estate. It will also be impacted by the need to carry out any searches and who the surviving relatives of the deceased person are.

Who gets Probate when there is no will?

If a person dies without leaving a valid will the law requires that their estate is shared out according to the rules of intestacy. Anyone who dies without a valid will being in place is called an intestate person. If the person died has a surviving wife, husband or civil partner they will in most cases be both the administrator of the will and the main beneficiary.

Probate in these instances will usually be straightforward. If, however, the person who died has more distant relatives or relatives that can’t be found or easily identified, then the process can be delayed considerably.

Before the grant of letters of administration is applied for the correct administrator will need to be identified according to the laws of intestacy.

Who is the next of kin when someone dies without a will?

The next of kin rules when it comes to intestacy begin with the wife, husband or civil partner. This only applies if partners have entered into a legal relationship, through marriage or a civil partnership. The surviving partner of a couple who has lived together does not automatically inherit even if they have lived together for many years.  Also, if you have separated and divorced, then partners will not inherit under the rules of intestacy.

The children of the intestate person will inherit if there is no surviving married or civil partner. If a partner does survive they will only inherit some of the estate if it is valued at higher than the £270,000 statutory legacy level.

If there is no surviving married or civil partner the children of the person who has died intestate will inherit the entire estate. If there is more than one child, the estate will be divided equally between them.

In some circumstances, grandchildren or great-grandchildren can inherit from the estate of an intestate person, as too can siblings and nephews or nieces. If no partner, children, nephews or nieces or grandchildren exist, then grandparents, uncles and aunts and even half-uncles and aunts may come into the equation.

What happens when someone dies without a will?

When someone dies without a will, the rules of intestacy come into play. These are a set of laws that define what should happen to someone’s estate when they die intestate. This means the estate of the deceased may not fall into the hands of the people they intended it to such as relations or loved ones.

How long does probate take without a will?

The Probate Registry previously quoted timelines of 30-60 days from submitting the probate application to getting the grant of letters of administration delivered. However, post Covid, we have seen timescales of more than 6 months for straightforward applications with valid Wills to be completed. You can read more about the problems that delays in obtaining a grant of probate can cause here https://todayswillsandprobate.co.uk/how-probate-delays-affect-heir-hunters/

In Summary

To get probate without a will, the person who stands to inherit the most under the rules of intestacy needs to apply. This is usually the spouse or civil partner, followed by the children of the person who died. If there are disputes or issues with potential claims, this can be less than straightforward.

Before applying for probate,  any property within the estate should be valued and the total value of any accounts, savings, investments, pensions and life insurance policies should be assessed. This should include the value of any debts owed such as mortgages, loans, credit cards and utilities – as well as the cost of the funeral.

HMRC returns will also need to be completed prior to apply for the grant to ensure any tax liabilities are declared and tax reliefs applied for.

Administering an estate can be a complicated process which is only made more difficult in the absence of a valid Will.

For all questions on probate, no matter how complex just get in touch with the team who can advise on the best approach, just call 01522 500823.

Visit btwc.co.uk for more info