A death in the family is a distressing event. It leaves them scrambling for advice regarding what to do with the deceased’s possessions. This is what probate is in England and Wales, although that’s just a legal term for sorting their things out.
When someone dies, the government steps in to protect their interests. They don’t want people having a free for all, and taking what they like. Applying for probate is asking to act on behalf of a deceased person, so their hopes and wishes come true.
Two Types of Permission in One Probate System
If the deceased person left a will, then their executor applies for a ‘grant of probate’ to administer it. If the will is straightforward, a trusted friend or family member could be executor and sort it out. However, if the will is complicated, or there are objections then a solicitor may be a better choice.
If the deceased person did not leave a will, or the authorities regard it as invalid then they will issue ‘letters of administration’ instead. This means the executor must distribute the estate. Under these, married partners and close relatives enjoy preference when the estate is shared out.
However, probate / letters of administration from the government may be unnecessary if all the deceased’s possessions were jointly shared. In that case they automatically belong to the other stakeholder(s). Savings and premium bonds are also exempt if they were the only asset.
Stage One in the Process – Who May Apply to be Executor
If there is a will and it – or a codicil – names an executor then that’s the only person who may apply. If there is more than one executor then they must decide among themselves who does so. If the will does not mention anyone, then the probate office will make the final decision.
However, if the person did not leave a will, then their spouse, civil partner, or child at the time of their death are likely candidates to request letters of administration. Again, they must decide among themselves who accepts the task.
Stage Two in the Process – The Executor’s Duties
The first challenge is finding the most recent original will, together with any updates (codicils). Wills are typically kept in the deceased’s home, with their solicitor or bank manager, or perhaps at the London Probate Department.
The authorized executor can then close out the estate, and distribute the assets according to the will, or the rules of intestacy whichever applies.
That’s All Fair and Good But What About an Unwilling Executor
Nobody in Wales and England has to be an executor. They can irrevocably renounce their executorship by informing the probate office, and leave it to them to find a replacement. Alternatively, they could choose to reserve their right until a later date if they are the only one.
Perhaps it is better to delegate an attorney to act as executor in these two instances. That way, the heirs can receive their entitlements sooner, and the living can get on with their lives.
