When someone in the UK dies, there is a set process to follow. Part of this is called probate, administering their estate according to their will. But is it possible to apply for probate without a will?
The short answer is that, although it’s technically not called probate any more, yes you can apply to get the legal right to administer the estate of someone who has died without a will.
However, there are various limitations and provisos that it is worth understanding before you begin the process:
Who Decides Who Inherits If There Is No Will?
If someone dies without a will they are said to have died “intestate”. If this happens, who inherits is decided by laws called the “Rules of Intestacy”.
Essentially, this means there are default rules laid out in law that decide who inherits what from a person’s estate if they have no will.
What Are The Rules Of Intestacy?
The Rules of Intestacy set out in law for England and Wales decide who inherits what from a deceased person’s estate if there is no will. Roughly speaking, they say:
- The spouse inherits – all of the deceased’s possessions and £270 000 of the estate.
- The spouse and children split the rest – for estates valued over £270 000, the deceased’s spouse and children split the rest 50/ 50.
You’ll notice that these rules don’t take account of modern family relationships. Where are the partners who live together forever but decide never to marry? What about step-children?
These relationships don’t really count under intestacy laws. Mainly because the laws are very old and haven’t been recently updated.
Even the deceased’s children don’t get any inheritance under intestacy laws if their spouse is still living and the estate is relatively small. Any grandchildren will get nothing unless there is no spouse and no children.
This makes writing a will vital for everyone. Sadly, most people only recognise this when they face the challenge of handling the estate of someone who has died intestate.
Can You Apply For Probate Without A Will?
No, but you can do something very similar. Applying to the courts for the equivalent of probate under the Rules of Intestacy is called applying for a Grant of Letters of Administration (instead of applying for a Grant of Probate).
This is an almost identical kind of legal authority. It lets you start to administer the estate of someone who has passed away without a will. To successfully apply for Letters of Administration, you will usually need to be closely related to the deceased, such as being their:
- Spouse or civil partner
- Close relative or possibly friend if closer relations agree
However, if there are no surviving relatives, the person’s estate may pass to the Crown.
What Are Letters Of Administration?
A Grant of Letters of Administration is the “no will” alternative to a Grant of Probate and does effectively the same thing. Instead of being the “executor” of a will, you will become the “administrator” of the estate. You’ll need to accomplish the same tasks though.
Once you have received your Letters of Administration from the Probate Office you can start to administer the estate. This will involve valuing the estate, calculating how much Inheritance Tax is owed and paying it, and many other jobs.
Be aware that if someone dies intestate there is often more Inheritance Tax to pay. You should also understand that as the administrator of an estate you can be hold personally liable if you don’t pay the correct Inheritance Tax or make other (even honest) errors.
How To Get Probate Without A Will
Just to reinforce the message, without a will you are technically applying for Letters of Administration instead of probate.
The first thing it’s usually a good idea to do is consult a specialist solicitor or other legal expert. This is because, as we’ve seen, the Rules of Intestacy aren’t exactly a perfect match to the modern world. Nor do they often reflect what the deceased’s wishes would have been.
This makes professional advice as to how to proceed invaluable. This is doubly true if you suspect there may be any kind of disagreement between potential beneficiaries.
Once you have advice in hand, you can follow the (sometimes complex) instructions for applying for probate if there is no will on the gov.uk website.
Can I Create A Will On Someone’s Behalf After Their Death?
No, it’s not possible to create a will on someone’s behalf after their death – even if you believe you understand what their wishes would have been very clearly.
The only thing you can do is essentially give away some of your own inheritance through what is called a “Deed of Variation”. A deed of this kind allows you to make the inheritance fairer for more people or make sure someone who should have received some inheritance gets a fair share.
Like every part of applying for probate without a will, this is best done only with a little professional advice on hand to make sure you aren’t doing something you will later regret.
Want To Talk Over How Grants of Probate Or Letters Of Administration Work With An Expert?
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