Wilsons Solicitors

The answer is, if you haven't made a will, you end up in what they call the rules of intestacy, which is a bit of old legal latin. Testament is an old name for a will; testate means you have made a will, intestate means you haven't.

If you have made a will then your will will state two things. Firstly, it will say who it is that you want to sort out your affairs for you when you die, and secondly, it will say who that person or persons should give your money to when they have finished the job, assuming of course that there is any left once you have paid off all the bills, the funeral expenses and taxes, and so on.

If you have not made a will then you have missed out on the chance to specify either of these things, and therefore the law steps in. And the way the law deals with it may or may not be anything like the way you wanted it dealt with, but then again that's your fault, you should have made a will, shouldn't you?

What the law provides is two separate lists. One is a list of people who are permitted to do the job of administering your estate if they wish to do so, and if you haven't specified somebody else in your will. And the other one is a list of people who will get your money after that first person has done the job.

The latter list is the one that most people are more interested in, and it's a common misconception that at the top of that list is your spouse. This is only true to a limited degree. It is true that first call on the estate of a deceased who leaves no will is their spouse, but it's not true that the spouse inherits everything. The spouse only inherits a part, which may, depending on the circumstances and of how much has been left and what other relatives are about may be the whole estate, but it needn't necessarily be so, and in certain circumstances it can be only a very small part of the estate. The rest of it will then go elsewhere. But that's the penalty for not making a will.

So, how do you go about getting probate when somebody dies?

The answer is, you have to go off to the Probate Registry and you submit to the Probate Registry the original will, if there is one, and what they call the Oath, whether there is or there isn't a will. An Oath is simply a document that proves that you are who you say you are, namely the person named in the will, if there is one, or the person entitled to take Probate if there isn't, and in which you promise to carry out the duty of being the deceased's representative in accordance with the law.

Taking out these grants of probate, as they are called, is something lawyers do all the time , and a good lawyer will happily guide you through the process. When the process has been concluded you receive from the Probate Registry a nice shiny official certificate that says that you are now entitled to administer the affairs of the deceased. That certificate you can then take off to all the banks and so on with whom the deceased had any dealings so as to prove to them that you're entitled to the relevant monies, etc.

You then have to gather in all the deceased's monies, make sure it's all properly accounted for and then make sure it gets to the people who are entitled to it, either under the will or under the rules of intestacy, as the case may be.

When you have completed the job and you've got all the money in and you've paid all the debts, etc, you then send it off to the relevant people entitled to it under the will or the rules of intestacy, as the case may be, and they are entitled to see the accounts to make sure everything is just as it should be, and that's the job done.

There are however one or two complications that can arise.

Firstly, I haven't mentioned anything about inheritance tax. Inheritance tax is what you pay when you die, and the way the government makes sure that it gets paid is by ensuring that the government gets paid first before anybody else.

The way the system works is that the government requires you to fill in the Inheritance Tax Return Form before you apply for a Grant of Probate, and you will not be given a Grant of Probate until you have done so. You fill in the form with details of all the assets of the deceased, and liabilities, and you are suppose to calculate the deceased's inheritance tax liability yourself and send the government a cheque.

The problem here of course is that because you haven't got a Grant of Probate you haven't got any of the deceased's assets, and therefore you haven't got any of the deceased's money with which to pay this tax that the government is requiring from you in advance of paying anybody else. This is not an uncommon problem, but it tends to be dealt with by getting a loan from a bank.

Another complication might be, let's say you don't want to do the job.

Well, that's fine. It's not compulsory, even if you've been named in a will, you don't have to accept the job. If there's no will and you happen to be top of the list of people who are entitled by law to administer the Estate in the absence of a will, that doesn't mean you're obliged to do it, it just means you can do if you wish to do so.

One thing you do have to watch however is that you cannot start to doing it and then change your mind and decide you'd rather not after all. That's not so easy. It is in fact impossible to resign from being an executor once you have taken the job on. The best you can do is get a court order appointing somebody else in your place, or in other words get yourself sacked.

The Probate Registry will not sack anybody as executor unless there is somebody else there to step in, although in practical terms if the existing executors are determined not to do it the Probate Registry will recognise reality and appoint somebody else, whoever that somebody else may be.

Another point to bear in mind is that sometimes you don't need to bother appointing any executors anyway.

One instance of this is where the Estate is very small, sometimes you can get away with administering it without a Grant of Probate.

Another much more common example is where you have a married couple, and everything is in joint names anyway. In that instance if everything has been left by the deceased spouse to the surviving one, it might well be there's no point getting a Grant of Probate.

Take the house as an example. This is frequently the most important asset. If that's in joint names it may well pass, by what lawyers call survivorship, in any event to the surviving spouse, and no action is required to achieve this. There will of course need to be something done after the second spouse dies, and it's not uncommon in that situation for at that stage two Grants of Probate to be sought for each of the spouses.

What happens if somebody is appointed as executor and proceeds to make a complete hash of the job? Or to be more precise, what happens if somebody is appointed as executor and somebody else comes along and alleges they have made a complete hash of the job? Because of course just because somebody alleges something doesn't necessarily mean it is so.

The answer to this is that all executors are appointed by the Probate Registry and are also removable at the discretion of the Probate Registry. This applies even if you have been named in the will, or even if you're at the top of a list of people who are entitled to administer the Estate because there wasn't a will. All that does is give you first pick at doing the job. If you nevertheless turn out to be rubbish at it, then you can be removed.

Of course the Probate Registry won't know anything about your poor performance unless somebody tells them, because once the Grant of Probate has been issued the Probate Registry do not have any further involvement. It is assumed that they can safely leave that to the beneficiaries to bring to the Probate Registry's attention any problems if they wish to do so.

But if somebody does bring a complaint and the Probate Registry agrees with it, after a proper full hearing where you can put your case, then you can be removed as an executor and have somebody put in in your place.

There is also a procedure whereby even when you have not yet been appointed, if somebody thinks you will make a hash of it, or you shouldn't be appointed for whatever reason, they can stop you being appointed in the first place until they objections have been heard.

What happens if somebody doesn't agree with the way the Estate monies are being distributed? Either because they disagree with what the will says or they think there is something fishy about the will, for example they think the deceased's arm was twisted into making it, or if they think the deceased has been particularly unfair to somebody, and they should not have made the will in the way they did.

Well the answer to all this is that in most cases a will or the rules of intestacy, if they apply, cannot be challenged. They are just there as given and that's that.

There are occasional exceptions to this however. If for example you could prove that a deceased was put under duress to make a will, then that could make a difference, and sometimes undue influence has the same effect. What's meant by undue influence is where for example, you have a particular beneficiary who looms large in the will as having received lots of money, but who is somebody who was able to exercise some sort of emotional control over the deceased, and also as it were, delivered them up into the solicitor's office to sign the will.

Another possibility is that English law also provides that you cannot broadly speaking dis-inherit people who are dependent on you. Therefore, if you make a will and there is somebody who is dependent on you for their maintenance and you have left them completely out in the cold then they can challenge that, and if a Court is sufficiently minded it can order that your will be changed, so as to make sure you look after the people who you were looking after before you died.

Spouses have even more protection if you dis-inherit them. They're entitled to challenge the will, even if they were not dependent upon you.

Most lawyers provide probate services for those who want them. But there is no law that says you have to have a lawyer. You choose.

At the extremes, you can hire a lawyer to do the whole job, or you can do the whole job yourself without ever involving a lawyer at all. The latter option is not one that most lawyers are all that keen to shout about, but it is there just the same.

As a half way house, you can do it yourself but just ask a lawyer for advice from time to time on the bits you find trickier. The more traditional sort of lawyer might look askance at that, or even turn their nose up at it completely. But there are lots of other lawyers around.