Thankfully, the law is clear around who can apply for probate and what you need to do if a loved one dies without having written a Will – called dying intestate.
Do I even need to apply for probate?
If the deceased didn’t own property, land, or shares, and only had a small amount of savings, then you may be able to deal with their estate without applying for probate.
Who can deal with the deceased’s estate if there isn’t a Will?
In this scenario, the closest living relative can apply for probate and deal with the deceased’s estate.
This will be the deceased’s spouse or civil partner in most cases.
If the deceased was single, divorced, or widowed, the next closest living relatives would be children over 18. This includes any children legally adopted by the deceased but doesn’t include step-children.
Intestacy is a circumstance that highlights the importance of having a Will that clearly states your wishes. For example, if you die without a Will, your spouse or civil partner is your closest living relative even if you are going through a separation. So you could end up with someone handling your affairs when you’re gone that you’d ideally like to have nothing to do with them!
Furthermore, and contrary to popular belief, unmarried partners cannot apply for probate and have no rights in terms of inheriting or being able to live in the deceased’s property.
So, if the deceased had several children, who can apply?
If there is no surviving partner, any of the children can apply for probate. Eldest children don’t have any additional rights over their younger siblings, for example.
While you may wish to discuss and agree which of you will apply for probate if a parent has died, it shouldn’t make any difference to the distribution of the estate, as the administrator of the estate is legally obliged to follow the rules of intestacy.
Does the person who applies for probate get to decide how the estate is distributed?
No – the deceased’s estate must be distributed per the rules of intestacy.
How these rules apply will depend on the value of the deceased’s estate.
In applying for probate, the applicant agrees they will distribute the estate following the law.
Therefore, if you’re planning to apply for probate to deal with the estate of someone who died without a Will, you may wish to take legal advice if you’re unsure how the rules of intestacy would apply.
Do I need to do anything before applying for probate?
You will need to have the death certificate to hand to inform the probate registry of the relevant details from the document.
You’ll also create and report an estimate of the value of the deceased’s estate to determine whether you need to pay any inheritance tax.
What if I’m the closest living relative but don’t want to apply for probate?
Then you don’t have to.
If you’re the spouse or civil partner of the deceased, you will usually need to complete a PA16 form to give up your right to administer the estate. When you do this, any children of the deceased will then have the right to apply for probate and distribute the estate.
However, if the deceased had no children or their children have died, you will need to complete a PA12 form, granting power of attorney to up to two people to apply for probate and administer the estate.
Relatives who aren’t the spouse or civil partner of the deceased, including children or grandchildren over the age of 18, should also complete a PA12 form if they wish to give up their rights to apply for probate and deal with the deceased’s estate. They can also appoint an attorney to apply for probate and distribute the estate on their behalf with a signed enduring power of attorney or a registered lasting power of attorney.
Contact LawPlus Solicitors today if you’re ready to value a loved one’s estate and apply for probate.