When someone dies, the complexity of the ensuing paperwork largely depends on whether the person left a will or died intestate.
Processing & prioritising the paperwork after death
The following step-by-step guide covers all the basics involved in processing the initial documentation and prioritising paperwork after death.
First, find out if a will exists and, if so, where it is located, (e.g. with the deceased’s solicitor or bank, or in safe custody at the Principal Probate Registry Office, London)
Ascertain, precisely, what the deceased person’s estate comprised of, including all assets and debts Establish who is to administer the estate and who is to inherit
Obtain the Grant of Representation either in the form of a Grant of Probate or Letters of Administration (see definitions below)
Distribute the assets as set out in the will or, where no will exists, in accordance with the law of intestacy
Duties of the executors of the will
If a will has been written, the usual procedure is for the person/s named in the will as executor/s to administer the deceased’s estate.
The executors’ main duties when processing and prioritising paperwork after death are to comply with the testator’s wishes. Duties include: checking to establish that the will is valid, has been signed and dated, that there are two witnesses, whether there is a codicil, that the will is current and that there are no more recent wills in existence.
Also, before application is made to the Probate Registry for Grant of Probate, it is important to check that the will has not been tampered with in any way.
What is a grant of representation?
- A Grant of Representation is a legal document issued by the court which authorises the person/s named in the document to manage the deceased’s estate. The Grant of Representation actually consists of two documents: (i) the HM Revenue & Customs Inheritance Tax form (this applies even where no Inheritance Tax is payable) and (ii) an Affidavit which is the actual application for the Grant.
Is a grant of representation always necessary?
- As a general rule, a Grant of Representation may not be required if: the deceased’s total estate amounts to less than £5,000 (currently) does not consist of property, land or shares the entire estate is held jointly (in which case, it passes automatically to the surviving joint owner) no other legal complications or requirements exist
What is a grant of probate?
- A Grant of Probate, (available from the Probate Registry, a section of the court), is a legal document authorising the executors of the will to administer the deceased’s estate.
What happens if someone dies intestate?
- When the person has died without leaving a will, the process of administering the deceased’s affairs can be extremely complicated and often protracted over several months – sometimes, even years. The term ‘intestate’ is used to describe a person who has not made a valid will before death. If this happens, the law according to Intestacy Rules decides who is to deal with the deceased’s affairs and who should inherit their estate, including property, money and personal possessions. It is also worth bearing in mind that, depending on the way in which property is held, it may pass to other joint owners outside of the deceased’s estate.
Administrators
In England and Wales, The Administration of Estates Act 1925, states who has the legal right to act as administrator of the deceased’s affairs when someone dies intestate.
The Administration of Estates Act 1925 does not apply in Scotland or Northern Ireland. The equivalent Act in Northern Ireland is the Administration of Estates Act (Northern Ireland) 1955 and, in Scotland, The Administration of Estates Act 1971.
Grant of letters of administration
If the person died without leaving a will, then it is a matter for the law to decide who should be given the right to become the administrator/s of the deceased’s estate.
The nominated administrator is usually a close relative of the deceased, e.g. spouse, offspring or parent. Sometimes more than one individual may be given equal rights, particularly in cases where the person who stands to benefit is a child.
The designated administrators can then apply to the Probate Registry for the official document called a Grant of Letters of Administration.
A solicitor can apply for the Grant on your behalf or you can apply in person to the Principal Registry (Family Division) at the London Probate Registry; website: www.hmcourts-service.gov.uk.
This Grant enables the person/s given legal rights to administer the deceased’s estate; it is also proof to the various organisations that the administrator has authority to access and then distribute any monies that were held in the deceased's name.
Is a surviving partner an automatic beneficiary where there is no will? No. If the deceased has not made a will, a surviving partner who was not married to the deceased or a civil partner, will not automatically inherit all or part of the deceased partner’s estate.
Bear in mind, also, that any children (except adopted children) who are not the biological children of the deceased are not automatic beneficiaries.
Grant of Probate & Grant of Letters of Administration: The Difference
The difference between a Grant of Probate and a Grant of Letters of Administration is that the former applies where a will exists and the latter applies in cases of intestacy. A Grant of Probate authorises the executor/s named in the will to carry out the deceased’s wishes in accordance with the terms of the will. Conversely, a Grant of Letters of Administration authorises specific person/s to act as administrators for the deceased’s estate in accordance with the law on intestacy. Both Grants give the same authority to administer the estate of the person who died.
Find a solicitor
When someone dies, particularly when they have not made a will, the person dealing with the deceased’s affairs is advised to seek legal advice from a solicitor specialising in Wills and Probate. Please click on the following link for Wills and Probate services: Wills and Probate.