Obtaining probate (administration) when there is no will

If a loved one has passed away without a will and you do not know what to do next, our solicitors are here to help.

Where the deceased did not leave a will, they will be deemed ‘intestate’ and ‘intestacy rules’ dictate who is entitled to a share of someone’s money, property and possessions.

In a hurry? Request a callback!

    Who can apply for probate without a will?

    The law also determines who can apply for probate. This could be a spouse or the deceased’s children, but it will depend upon the individual circumstances and you should seek professional advice to ensure that the correct person, or people, are acting.

    This person will be called an administrator and, rather than probate, they will apply for letters of administration (though, the term ‘probate’ is often colloquially used even in these circumstances).

     

    It is the job of the administrator to gather information about the estate. They will need to determine the value of all the estate assets and determine what sums, if any, are owed by the deceased and to whom.

    To find out this information, you should contact the various banks, building societies and other financial organisations and ask for valuations at the date of death. If you choose to instruct a solicitor, this is one of the steps we can assist with. We regularly liaise with such institutions and are aware of exactly what information is needed.

    Once all the valuations have been ascertained, you will need to complete various forms in order to apply for letters of administration. Firstly, it is necessary to account to HMRC in respect of inheritance tax. This is required even if no tax needs to be paid.

    If tax does need to be paid, this must be paid before letters of administration can be obtained, and you can request payment of the tax that is owed directly from the deceased person’s accounts.

    After having settled the inheritance tax liability, or confirming that no inheritance tax is due, you will need to complete an application form for the letters of administration. This is form PA1A, which is submitted to the Probate Registry. Most applications must now be submitted online.

    When the grant is received from the Probate Registry, you will need to send this to the various organisations that hold estate assets, or to whom sums are owed. On receipt of the grant, the organisations will release funds to you and you can begin to repay the deceased’s liabilities. Any funds which are released to you must be held in a separate account from your own funds.

    At this stage, you should also consider placing advertisements requesting any unknown creditors or beneficiaries to come forward. Without these, you could be held personally liable for any liabilities which later come to light.

    You should also consider the likelihood of any claims being made against the estate, for example from people who will not receive a benefit under the laws of intestacy but who feel they should do. If a claim is likely, it may be prudent to delay the distribution of the estate to the known beneficiaries.

    Once all estate funds have been obtained, you can then begin the process of distributing these to the beneficiaries. In the case of intestacy, you must obtain a full family tree to ascertain exactly who should receive estate funds and how much they should receive.

    A family tree can be commissioned from a professional genealogist, and you should consider commissioning this early in the process to avoid delays when it comes to distributing the estate funds.

    Whether you deal with the estate administration yourself or instruct a solicitor, your duties and responsibilities as administrator remain the same. It is important that you comply with those duties to avoid any personal liability.

    If you do not deal with the estate following the very precise intestacy rules, you could find yourself subject to a claim from those who have missed out. If you fail to account properly for estate debts, you could find yourself personally liable for these.

    It is also important that all estate funds are properly accounted for. Instead of relying on outdated or estimated valuations, you should ensure that you have obtained

    accurate and current valuations of all estate assets. Failing to obtain accurate valuations could result in underpaid taxes, which you would be accountable for. You must also ensure that all sums, no matter how small in value, are collected in and distributed, and you must keep estate funds separate from your own.

    Many of these responsibilities are easily overlooked without ill intent, but it is important to understand the strict duties to which you must adhere, as ignorance will not be accepted as a defence to any mistakes.

    Instructing a solicitor

    Our solicitors are knowledgeable about and experienced in estate administration and we can help to relieve the stress of the administration while ensuring that you comply with your duties.

    Some circumstances in which it is usually sensible to instruct a solicitor to obtain letters of administration are where:

    • the estate is high in value;
    • the estate assets are complex, for example, if some funds are held in trusts or complicated investments;
    • the family tree is complex;
    • there is likely to be a claim against the estate; or
    • the estate includes foreign assets, or the deceased was living outside of the UK.

    Even without any of these factors, our solicitors would be happy to help you navigate the process. Instructing a professional will ensure peace of mind that the estate administration is dealt with appropriately and your duties have been adhered to.

     

    How can we help?

    If you are the executor of an estate and you are at all concerned about inheritance tax, we would be pleased to assist you, whether with one off advice or dealing with the probate process on your behalf.

    Inheritance Tax (IHT) Calculator

    £

    More useful information