DIY Probate: What to do if there isn’t a Will

When someone dies and they haven’t left a Will, they are said to have died ‘intestate’ and the estate is distributed in accordance with the rules of intestacy.  When this happens, the law sets out who should deal with their affairs and who should inherit their estate (property, personal possessions and money).

Who can deal with the deceased person's affairs?

Many people assume that the ‘next of kin’ will handle the administration, but if the deceased dies without a Will the rules of intestacy will determine who should be appointed as administrator, to administer the estate.

When there is no Will, the person who deals with the deceased’s estate are called ‘administrators’ in England & Wales and ‘executors-dative’ in Scotland.

How are administrators appointed?

In England and Wales, when there is no Will, administrators are appointed in the following order of priority:

  1. the deceased’s spouse;
  2. any child of the deceased and any issue of a child who died before the deceased;
  3. the parents of the deceased;
  4. brothers and sisters of the whole blood of the deceased and the issue of any who died before the deceased;
  5. brothers and sisters of the half blood of the deceased and the issue of any who died before the deceased;
  6. grandparents of the deceased;
  7. uncles and aunts of the whole blood and the issue of any who died before the deceased;
  8. uncles and aunts of the half blood and the issue of any who died before the deceased.

In England and Wales, the maximum number of administrators is four (whether there is a Will or the person died intestate.)

How are executors-dative appointed?

Where there is no Will, the order of priority to be appointed executor-dative in Scotland is as follows:

  1. the person(s) entitled to the residue of the estate;
  2. any one of the next of kin or heirs on intestacy (if there is a surviving spouse, they would normally be preferred and would be exclusively entitled where the value of the deceased’s estate is less than the spouse’s ‘prior rights’ ;
  3. creditors; or
  4. specific legatees.

How to obtain a grant of probate when there is no Will

It’s not until the administrators receive a grant of probate that they have the authority to administer the deceased’s estate.

If there isn’t a Will, the grant of probate is called a ‘grant of letters of administration’ and in Scotland a ‘confirmation’.

To obtain a grant of letters of administration in England & Wales, you need to apply to the Probate Registry. In Scotland, you can apply for confirmation at the Sheriff Court in the area where the deceased was domiciled at death.

You can apply for a grant of probate in three ways:

  1. Do probate yourself: Lawpack’s DIY Probate Kit provides you with expert guidance and probate forms so you can do probate yourself.
  2. Get help from a probate company: Probate experts Kings Court can help you apply for a grant of probate for a fixed fee.
  3. Use a solicitor.

The grant of probate provides proof to building societies, banks and other organisations that you have the authority to access and distribute funds.

Note: If Inheritance Tax is due on the deceased’s estate, some or all of this must be paid before a grant of probate will be issued.

Other information

External links

Published on: October 26, 2011

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