Trusts & Probate

Grant of Probate Explained

Losing a loved one can be a very difficult time, and it can be made even more distressing when thinking about administering their estate. Grant of Probate can be a confusing process so we have created this short blog to try and explain it for you.

31 Aug 2021

Grant of Probate

 

Simply put, a Grant of Probate is a sealed court order which confirms the authority of an executor named in the Will. This person (or persons) will be in charge of administering the estate of the deceased. The Grant of Probate will allow you to collect the assets (i.e. selling the property, closing the bank account etc.). This will allow you to settle any liabilities of the estate (debts etc.), pay any inheritance tax to finalise tax affairs (if applicable) and then distribute the inheritance between beneficiaries.

Grant of letters of administration / Grant of Letters of Administration with Will annexed

 

If a Grant is needed and there is no will, the will is not valid, there are no executors named in the Will or the executors cannot or are unwilling to act, then you need to apply for Letters of Administration.

There is a hierarchy as to who can apply to obtain a Grant of Letters of Administration:

  1. Spouse of the deceased
  2. Children of the deceased or the grandchildren if the child has predeceased
  3. Parent of the deceased
  4. Brother or sister of the deceased or their children if they have predeceased
  5. Half brother or half sister of the deceased or their children if predeceased
  6. Grandparents of the deceased
  7. Aunts and uncles of the deceased or their children if predeceased

If more than one person can apply for the grant of letters of administration, then it will be granted to whoever applies to court first.

Once the assets have been collected and the liabilities have been settled then the Estate will be distributed following the “Rules of Intestacy” if the deceased lived in England and Wales:

  1. The spouse of civil partner must survive for at least 28 days, they will inherit the first £270,000 together with the personal chattels of the deceased.
  2. The remaining estate will then be divided between the surviving spouse and equally shared between any children.
  3. If no surviving spouse or children, whole estate is shared between the deceased’s surviving parents

If no surviving parents then the estate will pass in its entirety to the deceased’s surviving siblings.

Do you require probate?

 

You usually need to obtain a Grant of Probate or Letters of Administration to deal with an estate if it includes a property.

You may not need to if:

  1. Property is in Joint names as the property will pass by survivorship to the surviving joint owner.

However, if the deceased held the property as “tenants in common”, the surviving owner does not automatically inherit the other person’s share. Probate will need to be obtained so that the deceased’s share of the property can be passed in accordance with the Will or the rules of intestacy.

  1. If the deceased held a Joint Bank Account, then the account will also pass to the surviving owner without the need of probate.
  2. The Estate is small and only a small amount of money was held in a bank / building society, pension fund etc. If the money held by an organisation is under a certain threshold, they may release it to you without applying for probate or letters of administration. You may wish to check with the relevant organisation first. If the organisation refuses to release the money to you without a grant of probate then you must apply even if it is not otherwise needed.

M&P Commentary


Anne Wijayarathne, a trainee solicitor in our Wills & Probate Team, said:

“If you need help with Grant of Probate or Letters of Administration, please contact don’t hesitate to contact our Wills & Probate team on 01708 784000.”

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