Contentious probate solicitor, David Lees looks at who can obtain probate.
It is often a daunting task, when one has lost a loved one, to turn your mind to dealing with the deceased’s estate. And it isn’t made any easier by the complexities of the legal system that can sometimes arise.
Generally, the first matter to consider when dealing with the estate is to obtain the Grant of Probate. A Grant of Probate gives the person to whom it is issued the legal right to deal with the deceased’s property, money and possessions This is known as administering the estate.
An “executor” (sometimes more than one) is usually named in the Will, and they will deal with the estate on behalf the deceased.
However, what happens when the executor (also known as a personal representative) named in the Will is no longer alive? And what is the position when an executor decides they don’t want to take up the role, and renounces their executorship? Who in those circumstances can obtain probate? Is there some sort of order of who can apply first?
Well, the answer to those questions can be found within the Non-Contentious Probate Rules. The problem, however, is that these rules are not easy for those unacquainted with legal jargon to decipher. To make things simpler, we provide below a plain English translation of those rules, which sets out the order of priority:
- After the executor(s) named in the Will, those most eligible to obtain probate are the trustees of the residuary estate. The ‘residuary estate’ means the part of the estate that’s left, once everything else (tax, debts and gifts) have been paid. For instance, a couple of adult relatives might be named in the Will to hold the residuary estate on trust for a child of the deceased. Those trustees can seek to administer the estate if there are no named executor to deal with it. They would apply to obtain not a Grant of Probate, but more accurately a “Grant of Letters of Administration with Will attached”.
- If there is no executor, then the next in line would be either any beneficiary of the residuary estate or a beneficiary of the residuary estate not covered by the Will. Under the Will a beneficiary is a person who is due to inherit and a residuary beneficiary is one who inherits the residuary estate, as described above. So, the residuary beneficiary can apply for a Grant. and if there is more than one of them they can apply together. What is meant by the phrase “beneficiary of the residuary estate not covered by the Will”? Well, it might be that, for example, the sole person named as the residuary beneficiary passed away before the person making the Will. In that instance the next of kin of the person making the Will might be entitled to the residuary estate, and in those circumstances that person (even though they were not named in the Will) would be next in line to apply for a Grant too.
- Next up would be the personal representatives of any residuary beneficiary. This means that if the residuary beneficiary has died after the person whose Will we are considering has died, but before receiving their inheritance, then that deceased residuary beneficiary’s personal representatives can also apply for the Grant. So, for example, if John makes a Will naming Liz and Jean as the executors, and in the Will he gives Steve all his residuary estate, and Liz and Jean don’t want to be executors, and walk away (renounce); and there are no trustees of the gift of the residuary estate named in the Will in the same way as 1 above and there is no other residuary beneficiary like 2 above, and Steve dies after John, then, the personal representatives of Steve’s estate can also apply for a Grant of John’s estate.
- As we go down the list the categories of people are those who normally have less influence. Under the rules, if there are no executors to deal with the estate and none of the above categories apply then those who are next on the list are beneficiaries, who are not residuary beneficiaries, but may be beneficiaries who are entitled to, say, a gift of a house or cash, or creditors of the deceased.
- At the bottom of the list are the personal representatives of those people in 4 above, the personal representatives of the regular beneficiaries or creditors of the deceased, who have themselves died. Those personal representatives, can also apply to be the personal representative of the deceased’s estate too, if all the other categories above don’t apply.
All of this can be difficult to follow, so we would always recommend that you consult a specialist solicitor who will be able to consider the application of the rules in the context of the provisions of the Will, and circumstances of those who are involved.