Probate

When a person dies somebody has to deal with their estate (the money, property and possessions left) by collecting in all the money, paying any debts and distributing the estate to those people entitled to it.

The term probate often means the issuing of a legal document to one or more people authorising them to do this.  If you require further advice regarding Probate, please contact Chris Andrews or Louise Welch on 01206 576151 or Derek Root on 01206 302694.  Alternatively you can e-mail chris@johnfowlers.co.uk, louise@johnfowlers.co.uk or brightlingsea@johnfowlers.co.uk.

The Probate registry issues the document, which is called a grant of representation.
These are three types of grant of representation:

1. Probate

Issued to one or more of the executors who are people named in the Will of the deceased to deal with the estate.

2. Letters of Administration (with will)

Issued when there is a Will, but there is no executor named, or when the executors are unable to apply, or do not wish to be involved in dealing with the estate.

3. Letters of Administration

Issued when the deceased had not made a Will, or any Will made is not valid

Why is a grant necessary?

Organisations holding money in the deceased's name need to know to whom that money should be paid and the grant is proof that the person named in it may collect the money.

The estate left when a person dies passes to the people named in his or her Will. If there is no valid Will it passes on to his or her next of kin.

The distribution of the estate to the correct people is the responsibility of the person named in the grant.

The grant is proof to anyone wishing to see it that the person named in it is entitled to collect in and distribute the estate.

Is a grant always needed?

Sometimes a grant is not needed and you may wish to ask anyone holding the deceased's money whether they will release it to you without seeing a grant. If they agree they may attach conditions. It is for you to decide which is the cheaper or easier option.

These are organisations that may release the money to you without a grant, if the amount held is small and there are no complications. Among these are insurance companies and building societies
You will not usually need a grant when a house is held in joint names and it is clear that the house automatically becomes the property of the surviving owner.

If you are in doubt on this point you may need to ask a solicitor whether a grant is needed to change the ownership.

You will need a grant to transfer or sell a property held only in the deceased's name.
Do not advertise any house for sale too soon after the owner's death, as a sale cannot be completed until you have obtained the grant. The date of issue of the grant cannot be guaranteed to coincide with the final stages of any sale.

Am I entitled to a grant?

There are rules, which govern who may be given a grant, and whether or not one is issued may depend on the circumstances in a case.

The following points are a brief guide for you:

If there is a Will with named executors they are the first people entitled to a grant.

If there are no executors or the executors are unable or unwilling to apply, the next person entitled to a grant is any person named in the will to whom the deceased gives all his estate, or the remainder after the gifts have been paid.

If the deceased has not made a valid Will, his or her next of kin should normally make application for a grant in the following order of priority:
1. Husband or Wife;
2. Sons or Daughters; *
3. Parents;
4. Brothers or Sisters; *
5. More distant relatives.

(* Or if any have died in the lifetime of the deceased then their sons or daughters may apply)

A grant cannot be issued to any person under the age of 18.

Illegitimate relatives other than sons and daughters may not be entitled to a grant.

When more than one person is entitled to a grant they may all obtain a grant together, however there is a maximum of four applicants allowed. In most cases only one person needs to obtain a grant but there are circumstances when you and another person may need to obtain a grant together. If you are asked by someone else to apply on their behalf please send a note with your application giving the details of that person, and the reason why they are not applying.

If it is not possible to issue the grant to you the Probate Registry will explain the reasons.