Who Can Apply for Probate?

Author:
Dan Pinder
Wills, Trusts and Probate Solicitor
Date:
26/11/2020

Who can apply for Probate depends on whether or not the person who died left a valid Will. We explain Probate with and without a Will below.

What is Probate?

Probate is the legal process of applying for the legal right to deal with someone’s Estate when they die. This includes everything they owned at the time of death, such as their property, cars, savings, belongings and even their pets.

Dealing with Probate is an important role and there a lot of administrative work and responsibilities to take on, so only certain people can apply for Probate.

Our Probate Solicitors can deal with as much or as little of the Probate process as you want. We can only apply for Probate on your behalf, or deal with everything with our Full Probate Service.

We know this may be a very tough time for you if you’ve lost a loved one, and applying for Probate and dealing with HM Revenue & Customs will be difficult if you’re grieving too. So if you’d like help with applying for Probate, or advice on if you can apply, get in touch with our Probate Solicitors for free legal advice.

Call us on 08002605010 or request a callback and we will help you.

Probate with and without a Will

Let’s look at each scenario to see who can apply for Probate with or without a Will, in England or Wales.

Probate with a Will

The responsibility falls on the Executor who is named in the Will. Sometimes there can be more than one Executor, and in this the case, you’ll need to decide which one of you will apply for Probate. But if you want to, you can all choose to be named on the Grant of Probate application form and still be involved in the administration of the Estate.

What is the Probate Process?

  1. First you need to make sure you’ve got the original Will and any updated versions. The most recent Will is the one that is valid, but you should keep hold of the others until you’ve completed Probate.
  2. Apply for a Grant of Probate (also known as a Grant of Representation). This is the legal document that gives you the right to administer the Estate of someone who has died. Usually, this part of the process will take around 4 to 6 months, but you might experience some delays because of Coronavirus.
  3. Once you’ve got the Grant of Probate, you can start carrying out the deceased person’s wishes as set out in their Will. If there are any outstanding debts or Inheritance Tax to be paid, this must be done before you distribute any of the Estate assets to the beneficiaries named in the Will.

What if I Don’t Want to be Executor?

You might not feel up to taking on all the duties and responsibilities of an Executor. But don’t worry, you do have some different options such as:

  • Renounce (resign) the role completely by filling in a renunciation form
  • Apply to have ‘power reserved’ to you – this means you can keep your right to apply for Probate in case you decide or need to later on
  • Appoint an Attorney to deal with Probate on your behalf by filling out an Attorney form

Probate without a Will

As no Will means no named Executors, an “Administrator” of the Estate can apply for Probate. Usually, this will be a:

  • Husband or wife (including former ones)
  • Civil partner
  • Child

The law in England and Wales is strict about who can apply to be an Administrator, so even if you were the partner of the person who died, you can’t apply for Probate unless you were married or in a civil partnership with them.

What is the Probate Process?

  1. To become the Administrator, you need to apply for Letters of Administration. This is another form of a Grant of Representation, which gives you the legal right to deal with your loved one’s Estate.
  2. Gather and value your loved one’s assets and pay off any outstanding debts.
  3. Complete tax returns and pay any required tax such as Inheritance Tax*, Capital Gains and Income Tax.
  4. Prepare a full set of Estate accounts.
  5. The Estate assets can then be distributed according to inheritance laws called the Rules of Intestacy.

Who Inherits if There is No Will?

If someone dies without leaving a valid Will, it means they died ‘Intestate’ and the law will decide who inherits what (Rules of Intestacy).

Under these rules, assets are distributed to family members in the following order of priority:

  • Husband, wife or civil partner
  • Children (including adopted children) or grandchildren if children are predeceased

If there is a surviving married/civil partner and children, then the first £270,000 of the Estate is paid to the husband, wife or civil partner as a legacy, and they’re given ownership of the property.

The remaining amount is then split 50/50 between themselves and the children.

  • Parents
  • Siblings (or their children)
  • Half-siblings (or their children)
  • Grandparents
  • Uncles and aunts

Dying Intestate can often cause conflict amongst family members and sadly means that your loved one’s final wishes aren’t always carried out.

We do understand how upsetting it can be if you feel your loved one’s Estate hasn’t been divided how you think they would have wanted it to be. But if there is no Will, then there isn’t too much you can do.

Our Probate Solicitors are understanding and will always handle your case sensitively.

*See case study: Probate Solicitor Saves Client £117,500 Inheritance Tax on Estate.

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