I’m going to start by saying how important it is to ensure that you have a Will in place. Unfortunately, sometimes our loved ones put this off, believing it to be onerous, or not appreciating that the inevitable is sooner than they thought.
What happens is there is no Will?
We would always advise carrying out a Will search before assuming an estate is intestate. This can be done by undertaking a search of the National Wills Register.
If you are certain that there is no valid Will, that persons estate will fall under the Rules of Intestacy. This is the law that dictates who is to inherit and indeed, who is entitled to administer the estate.
The Rules of Intestacy?
The Rules of Intestacy can be quite complex to understand, particularly if there are a significant number of beneficiaries. If you are married and have children, only the first £322,000 will pass to your surviving spouse, the remainder will be divided between your children and your spouse. This is particularly important to note that if you are not married, your estate will not pass to your partner, regardless of how long you have been together.
We would recommend conducting a family tree search before going any further.
What does administering an estate mean? How do we know who that Administrator is?
When someone passes away in England and Wales, their estate needs to be collected in, including selling and transferring any assets such as property, land, shares, and bank accounts, and any debts paid. The balance, their ‘net estate’ then needs to be distributed to the beneficiaries.
Where there is a Will, the deceased will have appointed Executors, who are generally people that they trust and know are capable of dealing with their affairs. However, as noted above, when there is no valid Will, the deceased will have died intestate, and therefore the Rules of Intestacy dictate who is responsible for dealing with an estate. This is often referred to as the ‘Order of Priority’. The Order of Priority follows the Rules of Intestacy, with the exception that a beneficiary in the same branch may have a higher priority than you.
For example, Mr Green passes away, leaving no living spouse or civil partner, children, grandchildren or parents. Mr Green does have 2 siblings though, Mr Blue and Mrs Yellow. Mr Blue had predeceased him, but Mr Blue did have a daughter, Miss Orange.
Both Miss Orange (niece) and Mrs Yellow (sister) are going to receive 50% of the estate each under the Rules of Intestacy, however, because Mrs Yellow is the sibling, which ranks higher in the Order of Priority than Mr Green’s niece, it is Mrs Yellow who is entitled to administer the estate.
How do I know if I need Probate / Letters of Administration?
This depends on what the deceased had in their estate at the time they passed away. If they owned property or land, then probate will most certainly always be required, unless the property or land was owned as joint tenants with another person.
Each bank or share company have their own thresholds as to whether they will require a Grant of Representation before they release funds to you. Once you have registered the death with each institution, they will advise you what they need from you.
You will often hear people refer to the term ‘probate’, this is legal document that enables the administrator to deal with the estate. If there is a Will, the correct term used is a Grant of Probate. If there is no Will, then the term referred to is Letters of Administration.
► You can find out more about probate by reading our blog “What is Probate“.
How do I apply for Probate without a Will?
If the deceased has died intestate you will need to obtain probate without a will and to do this you need to apply for a grant of letters of administration. This allows the administrator to access the estate and distribute assets in line with the rules of intestacy.
Can a Partner challenge the Rules of Intestacy?
A surviving partner can make a claim against an estate if:
they were maintained by the deceased in whole or in part immediately before the death of the deceased; or
for two years prior to the death of the deceased they lived in the same household as the deceased as if they were the husband, wife or civil partner of the deceased.
If this applies to you, we would strongly recommend seeking advice from our contentious probate department and reading this news article “Cohabitees and Death – Who Can Claim?”.
Contact us
☎️ Call our Wakefield office on 01924 290 029 ☎️ Call our Garforth office on 0113 246 4423 ☎️ Call our Sherburn in Elmet office on 01977 350 500 ☎️ Call our Mapplewell office on 01226 339 009 ☎️ Call our Ossett office on 01924 586 466
About the Author
Melita graduated from Northumbria University in 2014 with a Masters in Law and qualified as a solicitor in April 2019 with Ison Harrison Solicitors and joined Thornton Jones Solicitors in July 2021.
Specialising in the making of Wills, Lasting Power of Attorney, Trusts and Court of Protection, Melita brings valuable experience to our Private Client team here at Thornton Jones Solicitors.
Outside of work she enjoys long walks, travelling and camping!
The content of this blog post is for information only and does not constitute formal legal advice and should not be relied upon as advice. Thornton Jones Solicitors Limited accepts no liability for any such reliance upon this content. Where the post includes links to external websites, Thornton Jones Solicitors Limited accepts no responsibility for the content of such sites. Any link to a third party website should not be construed as endorsement by Thornton Jones Solicitors Limited of any content, products or services which are outside our direct control.
