When there's no Will, or named executor in a Will, the move to secure grant of probate in order to be named as an administrator of the estate can sometimes, unfortunately, take on the characteristics of a race, with enmity, distrust and lack of transparency a common feature of such situations.
Ultimately, these conditions may lay the ground for a contested probate claim - an eventuality which can, with the right planning, be avoided.
The race for probate – who can apply?
In cases where the deceased has died intestate – without leaving a Will – next of kin can apply for the Grant of Letters of Administration in the same order or priority as applies to people who inherit under the Rules of Intestacy. This is in the order as follows:
- Spouse or registered civil partner
- Children, including biological and adopted children
- Nephews and nieces
- Half siblings
- Children of half siblings
- Uncles and aunts
- Half uncles and aunts
- Offspring of half uncles and aunts
This, however, can frequently prove problematic. For example, any person from the above list can apply for the Grant of Letters of Administration and many often do so without the approval of the other next of kin involved.
It is therefore essential that any party who is not highest priority receives the approval of all others concerned before proceeding with any application for Grant of Letters of Administration. This way, disputes are far less likely to occur and family members are much less likely to be beset with distrust or suspicion.
Furthermore, it is important to receive approval even in cases where the person applying is considered first priority. For example, if one sibling applies for probate without consulting his or her brother or sister, there is a chance that the second party might miss out on key aspects of the probate process, including the ability to have input regarding the distribution of the deceased's possessions.
When there is no named executor or the executor is incapable
If the Will does not name an executor, a beneficiary will need to apply for grant of representation. The person who has been left or is entitled to the residue of the estate will be first in line to be able to apply for grant of probate; so, if the estate is to be split equally between siblings, then the so-called 'race for probate' may be extremely pertinent, especially if there is likely to be a dispute over distribution of possessions.
Similarly, if the named executor is no longer able to carry out their duties, perhaps because they are mentally incapable or they are themselves deceased, a beneficiary can apply to the probate registry to administer the estate.
Oratto's disputed probate solicitors – helping you negotiate difficult times
Negotiating the stress, uncertainty and bureaucracy of probate, particularly in cases of intestacy, can be challenging. Receiving authoritative legal advice at the first sign of contention can make all the difference in ensuring a just outcome. Oratto's member contested probate lawyers can help you do this with confidence.
Contact Oratto today so that we can help you find the right member solicitor if you are currently experiencing the "race for probate".