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.
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.
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.
Co-op Legal Services is the largest provider of probate and estate administration services in England and Wales.
Our award winning Probate team includes specialist probate solicitors, lawyers, case handlers, advisors and our national network of probate consultants; all of whom only deal with probate.
Many of our probate solicitors, lawyers and case handlers are members of the Society of Trusts and Estate Practitioners (STEP). All STEP members are subject to an extensive Code of Professional Conduct, requiring them at all times to act with integrity and in a manner that inspires the confidence, respect and trust of their clients and of the wider community.
How do I find out if there’s a will during probate?
When a will is made, the executors are usually told where the will is stored, but this isn’t always the case. If a solicitor, lawyer or other professional has drafted the will, then it might be stored with them.
Finding the original will
We recommend that a thorough search of the deceased person’s paperwork is done to locate a will, or to locate any reference to a will being held by a law firm or will writing services company.
In England & Wales there is no central register of wills and sometimes the firm of solicitors which drafted the will has either closed down or been taken over. This may make it difficult or even impossible to find the original will.
If you know that the will was made by solicitors and it was not revoked, you can contact the Solicitors Regulation Authority (SRA) Intervention Archives department. When the SRA close down a firm, they take all the documents and papers that relate to its clients, and so the SRA may be able to locate the original will for you.
Executors are entitled to obtain a copy of the will from the solicitor. It’s also possible that a bank may be storing the will.
Before the will can be released, the executors have to prove that they are who they say they are, by providing proof of identity. They must also provide evidence of the death (by showing the death certificate).
Other options to find the original will include contacting the London Principal Probate Registry who have a wills storage facility. A company called Certainty also keep a register of wills and can conduct a search of the register for you.
Initially, it is only the executors who are entitled to see the will, and they do not have to disclose the contents of the will straight away. However, they might not be able to close accounts or sell assets such as property and shares until the court has issued a grant of representation. This document confirms the executor’s legal authority to administer the estate.
When the grant has been issued the will becomes a public document and anyone can apply to the court to get a copy of the will.
What if I find a copy of the signed will?
If your search for the original will is unsuccessful but you have located a signed copy of the original will, you may be able to submit a copy to be proved by the Probate Registry.
To do this, documentation must be submitted to the Probate Registry who will consider the paperwork and either give permission for you to prove the copy will, or refuse permission. The Probate Registry will confirm their reasons should they refuse permission, or they will request further evidence from the executor.
When making the application, the executor/s must submit an Affidavit. This is a written statement which must confirm, in detail:
In some circumstances the Probate Registry may require evidence from the beneficiaries who would inherit under the rules of intestacy, and obtain their consent to prove the will copy.
As an executor of a will you must do all that you can to prove the will with the Probate Registry.
What if I can’t find the original will or a copy?
If you have exhausted all options to locate the original will or a copy of the will and neither can be found, the estate will need to be administered in accordance with the rules of intestacy. These are the inheritance rules that apply when there isn’t a will.
After someone dies, their property, possessions, money and other affairs need to be sorted out. This is called dealing with their estate. If the person who died left a will, this will name an executor, which is the person responsible for doing this work. If there is no will then the person responsible for doing this work is called the administrator, and this is usually the next of kin.
The executor or administrator is the person who has the legal authority to do this work and they can ultimately be held accountable for any mistakes made.
You might also hear executors or administrators referred to as personal representatives. This is a general term for the person responsible for dealing with the estate.
If the person who died left a will, this will name one or more people as executor.
If there isn’t a will, the position of administrator is determined by inheritance rules called the rules of intestacy. These rules also determine how the estate will be distributed.
Being named as executor in a will can bring with it complicated, difficult and time-consuming duties which can take up to a year or more to complete.
It is crucial to get everything right because the executor is legally responsible for administering the estate in accordance with the terms of the will and the law. An executor is responsible for everything they do or fail to do when administering the estate.
Acting as the executor of a will can be a very daunting prospect because of the amount of legal, tax and administrative responsibilities. An executor’s responsibilities last for the duration of the administration of the estate and can also carry on afterwards if there are trusts.
If you find yourself in this situation and you are feeling overwhelmed, we can help. Our fully trained probate specialists will work alongside our probate solicitors and lawyers to support you, and our probate advisory team offer free initial advice and guidance on executor duties and responsibilities.
The length of time that it takes to administer an estate will vary depending on the size and complexity of the estate, as well as how much time the executor is able to commit to it and their proficiency in carrying out their duties. In many cases it can take up to a year, but it could take longer.
There is a lot of complex tax, legal and administrative work involved in the administration of an estate, so it’s important to be aware of what the executor role entails right from the outset.
Often more than one executor is named in a will, but not all of the executors have to apply for probate. A maximum of four people can apply to the Probate Registry to prove a will and be named on the grant of probate.
If some executors choose not to be involved in the administration of the estate, they have two choices. They can either renounce their role altogether or they can have ‘power reserved’ to them, which means they can step back in later on if they choose to.
A personal representative can be held personally financially liable for any loss resulting from a breach of their duty, even if the mistake was made in good faith, such as:
Disappointed family members or dependants have up to 6 months to make a claim after the grant of representation has been issued, while the deceased’s creditors can potentially make a claim against the personal representative for up to 12 years after the death.
If an executor dies after the estate administration has begun, what happens next depends on whether the executor dies before or after probate has been granted.
If an executor dies before probate has been granted, but there are other executors named in the will, the surviving executors can simply apply for the probate.
If all of the named executors have died or there are no substitute executors, the law will determine who is entitled to administer the estate. The Non-Contentious Probate Rules 1987 lists the order of priority of who can take this role.
If a sole executor dies after the grant of probate has been issued, if they left their own will, then the acting executor of their estate will also become the executor of the original estate. This means that no further grant of probate will need to be issued on the original estate. This is known as the chain of representation.
However, if the deceased executor did not leave a will, there isn’t a chain of representation and a new grant would be required to complete the estate administration. The person who is entitled to apply for this document will usually be a residuary beneficiary.
Executors and trustees both have a part to play in probate, but these two roles are very different.
Trustees will only be needed if a trust arises under the will. The trustees are the people responsible for looking after the assets in the trust for the benefit of the named beneficiaries.