Wills, Intestacy and Probate

Dealing with the death of a loved one is a difficult and emotional time, especially when faced with the task of dealing with their estate. Probate is the legal process of dealing with the estate of someone who has passed away, which may include managing their money, property, assets, liabilities and debts.

Grant of Probate

This is a legal document that empowers someone to deal with the deceased’s estate once they have died, which affords that person the legal power to step into the shoes of the deceased, often giving them the ability to sell property, access bank accounts, settle any outstanding debts and liabilities, and pay beneficiaries. This document is obtained by the named executor in the deceased’s Will, if they had one, and can be more than one person. The executor of someone’s estate can apply to the Probate Registry for a Grant of Probate, which will charge an administration fee for processing the application. If there is any Inheritance Tax payable on the deceased’s estate, this will need to be dealt with before the issue of the Grant of Probate.

Letters of Administration

If the deceased died without a Will, they are said to have died ‘intestate’. With this, a Grant of Probate cannot be granted by the Probate Registry, and instead, the Letters of Administration will be required. This is governed by the rules of intestacy, and there is a set list of priorities in terms of who is entitled to administer an intestate estate, which are:

1. The surviving spouse or civil partner,
2. Children,
3. Grandchildren,
4. Parents,
5. Siblings,
6. Nieces and nephews,
7. Other surviving relatives.

Sometimes, the deceased may have left a Will, but may not have named an executor, or the appointment of an executor may fail, for example, where the named executor has not survived the deceased, or is not willing to act. In this instance, the deceased is said to have died ‘partially intestate’, and the Letters of Administration will therefore be required.

Wills

It is crucial to ensure that matters are in order in the eventuality that you pass away. One way to achieve this is to have a will in place. This is a legal document drafted by a solicitor which details your wishes once you pass away, and can deal with the distribution of property, assets, and even govern the care of minor children. Wills are also a useful tool to ensure that your estate is dealt with in the most tax efficient way, and for this reason, it is essential that this is prepared by a legal professional. A will can be simple, for example by leaving your entire estate to your children, or complex in nature, tailored to suit your individual needs, such as the creation of trusts to ensure that a loved one is sufficiently protected upon your death. Furthermore, it is important to keep your will under constant review, especially when reaching important milestones in your life, such as the birth of children and grandchildren, the purchase of property, and upon marriage and divorce.

Intestacy

As mentioned above, if a valid Will is not in place upon your death, you are said to have died ‘intestate’, and the rules regarding your assets are dealt with according to the rules of intestacy. These are lengthy and often complex, and can sometimes mean that a person’s estate is not dealt with in accordance with their wishes when they were alive. For example, the rules of intestacy provide for surviving spouses and civil partners, but pay little consideration to long-term relationships and life partners, often meaning that they do not inherit from the deceased’s estate.

The priority in which the estate is dealt with is similar to that in deciding who can administer an intestate estate, but it depends on a number of circumstances, such as the number of surviving children. If there are no living relatives, the estate of the deceased ultimately passes to the Crown.

It is essential to ensure that the necessary safeguards are in place so that your assets are dealt with in accordance with your wishes, prior to your death, and it is therefore advisable to ensure your will is kept current and up to date.

Frequently Asked Questions

What is probate, and when is it required?

Probate is the legal process of administering a deceased person’s estate. A Grant of Probate is usually required when the person owned property or significant assets in their sole name.

How long does the probate process take?

The timeframe varies depending on the complexity of the estate, but it typically takes several months to over a year to complete.

What is the difference between a Grant of Probate and Letters of Administration?

A Grant of Probate is issued when there is a valid Will and a named executor, while Letters of Administration are used when there is no Will or no valid appointment of an executor in the Will.

Who can apply for probate or Letters of Administration?

If there is a Will, the executor applies. If not, close relatives such as spouses or children can apply under the rules of intestacy.

What happens if someone dies without a Will?

Their estate is distributed according to the rules of intestacy, which may not reflect their personal wishes.

Examples

Example A

Estate with a valid Will (Grant of Probate Required)

Sarah passes away, leaving a valid Will naming her two children as beneficiaries and her sister as executor. Her estate includes a house and savings in her sole name. The executor applies for a Grant of Probate, settles outstanding debts and bills, and then distributes the remaining estate to the children, according to the Will.

Example B

Updating a Will after major life changes

Tom wrote a Will in his 20s, leaving everything to his parents. Later, he has a partner with whom he cohabits and has children, but never updates his Will. When he dies, his estate is distributed according to the outdated Will, disadvantaging his partner and children.