Pay an invoice 0300 303 2071

After someone dies, it is often the case that a Grant of Probate or a Grant of Letters of Administration will be needed in order to wind up their estate and finalise their affairs. We look at the difference between these two types of grants of representation, who can apply for a grant, and how the grant is used once it is received.

Summary

This article includes:

What is a Grant of Probate?

A Grant of Probate is a legal document that gives authority to someone so that they can deal with the deceased’s affairs on behalf of their estate. The individual who is given authority is referred to as an executor. Executors are named in the deceased’s Will, and there may be one or more of them.

After the death, the executors have a range of responsibilities, including obtaining a Grant of Probate where necessary. This is done by applying to the Probate Registry. Before an application can be made, the executors need to value the estate, calculate and pay Inheritance Tax, if this is due, and complete a range of HM Revenue & Customs (HMRC) forms.

Once the Probate Registry issues the Grant of Probate, the executors can use this to transfer, manage, and sell the deceased’s assets.

What is a Grant of Letters of Administration?

If the deceased did not leave a valid Will, then it is not possible to obtain a Grant of Probate. Instead, one or more individuals will need to apply for a Grant of Letters of Administration. This is a similar document to a Grant of Probate, and it provides authority for the estate to be wound up.

The individuals who are granted Letters of Administration are referred to as administrators. It is usual for one or more of the estate’s beneficiaries to apply for the grant.

Grant of Letters of Administration vs Grant of Probate: The Key Differences

The main difference between a Grant of Probate and a Grant of Letters of Administration is whether the deceased left a valid Will. If they did, then the executors named in the Will should apply for the grant. If there is no valid Will, then an application is made by one or more individuals who are entitled to inherit, and who wish to administer the estate.

While a Will sets out who inherits an estate, under a Grant of Letters of Administration, the administrators are required to distribute the estate in accordance with the Rules of Intestacy. These are the rules that specify who is entitled to inherit, in strict order of preference.

By way of example, if the deceased left a spouse and children, then the spouse is entitled to inherit the first £322,000 of the net estate, plus all the deceased’s personal possessions. The remainder of the estate is divided in half, with the spouse taking one half. The other half is divided equally between the deceased’s children.

It may be the case that if there is no Will, then the administrators will need to make investigations to identify beneficiaries. If it is possible that there are unknown beneficiaries, then administrators will need to place statutory advertisements in the press calling for them to come forward.

It is important to follow the correct process throughout an estate administration, as executors and administrators can be held personally liable for any losses caused to the estate or to beneficiaries, even if they made innocent mistakes.

Who Can Apply for a Grant of Probate?

The executors named in a Will are authorised to apply for a Grant of Probate. If executors do not have the capacity to take on the estate administration themselves, they can engage a probate solicitor to deal with matters. The executors will still be named on the Grant of Probate, but the solicitor will deal with the application and the estate administration process.

Professionals will be paid from the deceased’s estate. There is otherwise no scope for payments to executors or beneficiaries for their time.

Using a probate solicitor is often recommended, as the process can be time-consuming and sometimes complex. It is also often a good choice if there is a risk that beneficiaries could be demanding, or if family relationships are tense.

Who Can Apply for a Grant of Letters of Administration?

Those who are entitled to inherit the estate under the Rules of Intestacy can apply for a Grant of Letters of Administration. In order of priority, this is:

  • A spouse or civil partner
  • The children of the deceased and the issue of any child who died before the deceased
  • The deceased’s parents
  • The deceased’s siblings

The list continues through other family relationships.

If people with equal entitlement cannot agree on who should apply for a Grant of Letters of Administration, the court has the discretion to choose. It can take into account issues such as an applicant’s characteristics, for example, ill health or insolvency, family relationships and disputes, and the share of the estate that an applicant is entitled to receive.

It can also decide to appoint a professional to act as an administrator.

How the Application Process Differs

The application to the Probate Registry for a Grant of Probate is slightly more straightforward. The executors will need to pay Inheritance Tax, complete the relevant HMRC forms and probate application, then send the original Will, death certificate, and probate fee.

With an application for a Grant of Letters of Administration, the executors need to ensure they have carried out a proper search for a valid Will. They will need to formally confirm that there is no Will, and set out full details of the deceased’s relatives.

What Happens After The Grant Is Issued?

Once the executors or administrators have the grant, they are bound to wind up the estate promptly. This includes:

  • Sending a sealed office copy of the grant to all asset holders and creditors – sealed copies can be requested at the time the application is sent, and they will generally be returned by asset holders and creditors once they have seen them
  • Clearing all estate debts and liabilities, including paying any outstanding tax
  • Running statutory advertisements, where necessary, asking unknown creditors and unknown beneficiaries to come forward
  • Selling or transferring all estate assets, to include property
  • Preparing detailed estate accounts
  • Distributing the estate to the beneficiaries and obtaining receipts

Common Problems And Delays In Obtaining A Grant

Before a grant application can be sent, the executors or administrators must identify all of the estate assets and liabilities, and calculate and pay Inheritance Tax. This can take time, particularly if the deceased had many holdings or was not especially organised.

The Probate Registry sometimes has a backlog of cases and may take some time to process an application. If forms are completed incorrectly or documentation is missing, then they will raise queries, and this can substantially extend the time taken for the grant to be issued.

For the most part, assets cannot be sold until a grant is received, so it is important to ensure that the application is as strong as possible. If there is a property to be sold, you will want to obtain a grant promptly to avoid having to maintain and insure it indefinitely.

Do You Always Need A Grant?

A Grant of Probate or Grant of Letters of Administration is not needed for a small estate. While there is no legal definition of a small estate, if assets are below £5,000, then a grant is not generally necessary. Each bank has its own threshold over which it will require a grant, so you can also check with asset holders to see their rules. Thresholds vary between around £5,000 and £50,000.

If the estate includes property, you will need to obtain a grant. It should be noted, however, that if a jointly owned property was held as joint tenants by a couple, then it does not form part of the estate. On the deceased’s death, the property automatically belongs to the surviving joint owner.

If the property was held as tenants in common, it does form a part of the estate, and a grant will be necessary.

Contact Our Probate Solicitors

If you need help with applying for a Grant of Probate or a Grant of Letters of Administration, please feel free to give us a call, and we will do all we can to assist.

For more about our Wills and inheritance services, see our Wills, trusts and probate page.

To speak to one of our expert probate solicitors, ring us on 0300 303 2071, email us at info@witansolicitors.co.uk or fill in our contact form, and we will talk through your situation with you and discuss how we can assist. We have offices in Birmingham, Northampton, London and Wellingborough.

FAQs

Is a Grant of Letters of Administration the same as a Grant of Probate?

A Grant of Letters of Administration is similar to a Grant of Probate, and provides the same authority to the estate’s personal representatives. However, the administration process may be slightly more complex in the case of a Grant of Letters of Administration, as the administrators need to ensure they have correctly identified all beneficiaries who are entitled to inherit under the Rules of Intestacy.

What takes longer: probate or letters of administration?

Dealing with an estate where there is no Will might potentially take longer, as those dealing with the estate will need to make extensive enquiries to check whether the deceased left a Will. This can include checking with local solicitors, accountants, and banks, and making enquiries of the National Will Register.

Can someone refuse to act as executor or administrator?

Someone can refuse to act as an executor or administrator; however, it is essential that they do not take any actions to deal with the estate if they intend to decline the role. If they do, it is known as intermeddling, and they may be forced to carry out the estate administration.

If someone does not want to be an executor, there may be another back-up executor named in the Will.

It is also possible for an executor to have power reserved. This means that they will be an executor but will not take part in the administration process. This gives them the option of taking up the power later on, if they want to assist at a later date.

It is common for executors or administrators to engage a probate solicitor to deal with the actual administration. This allows them to take up the role they are entitled to, but means they will not have to deal with the day-to-day process, which can be time-consuming, particularly if the deceased had a wide range of assets and liabilities.

What happens if there is a Will but no executor?

If no executor is available, then someone who is entitled to inherit will often step forward to make the grant application. If successful, they will be given a Grant of Letters of Administration with Will Annexed. This will entitle them to wind up the deceased’s estate. Again, it is open to them to engage a probate solicitor to carry out the administration work on their behalf.

Yes, both types of grants provide the named personal representatives with the same legal authority to deal with the estate.

Our other news & insights