No one likes to think about what will happen to their belongings or children when they die, but unfortunately it is an inevitability that we all must face.
A last will and testament, commonly referred to as a will, is a legal document that records and details your wishes in the event of your death. When an adult dies in England or Wales, a probate must be carried out, which means all of your assets such as property, shares, money and possessions are sold or transferred, and any outstanding debts such as mortgages or credit cards are settled. Whatever is left, is passed on to any beneficiaries.
The actual process of probate is similar regardless of whether there is a will or not, but in the event that someone has died intestate (meaning they didn’t have a will), the law, under the rules of intestacy, will determine who’ll inherit assets and who can administer the estate.
If you have drawn up a will, you will have nominated an estate administrator. In the absence of this document, your closest living relative can apply to become an executor. This could be a spouse or a civil partner, and then any children over the age of 18 – not including stepchildren. The estate administrator can be held personally financially liable for any loss resulting from their negligence or even a genuine mistake, so not surprisingly, sometimes the most entitled person doesn’t want to administer the estate. In this event they can appoint someone else, a power of attorney or surrender their rights.
Once an administrator has been identified, a grant of letters administration will need to be applied for from the court. This grants the authority to deal with the estate and the process of probate can begin.
Probate without a will can also be a lengthy and expensive process. The court will often require a detailed inventory of the deceased person's assets, which can be time-consuming to compile. The administrator may also need to hire legal or financial professionals to help with the process, which can add to the costs. The whole family tree needs to be identified and clearly understood, which means there is a greater risk of error. The last time changes were made to the Intestacy rules was almost a decade ago, consequently they don’t always allow for modern family relationships. Unmarried partners and stepchildren won’t necessarily be recognised as beneficiaries. Money or property will be allocated accordingly, which might not align with family wishes and can add complexity and strife to an already emotional the process.
To avoid the complications and expenses associated with probate without a will, it's important to create an estate plan during your lifetime. This can include drafting a last will and testament, establishing trusts, and designating beneficiaries on financial accounts and insurance policies.