How does probate work without a will?
If a relative dies without leaving a will they are deemed to have died 'intestate'.
The process for settling their affairs – known as probate – will work slightly differently, and there are strict rules that dictate how their assets will be divided.
Although the process is broadly similar to cases where someone dies with a will, there are a few key differences.
Firstly, the executor won't be named in the will, so a family member or friend will need to apply for the right to settle their affairs, or administer the estate. This is called applying for a 'grant of letters of representation'.
Other than the name, the process is similar to applying for grant of probate. The person settling the estate will need to contact the probate office.
It usually takes longer to settle an estate without a will, so it's a good idea to apply for probate as early as possible.
Need help with probate? Download our free checklist from Which? Legal Probate to help you through the process.
Valuing an intestate estate
Getting details of someone's affairs if there is no will can be more complicated, and may require a little more detective work on your part.
You'll likely need to provide a copy of the death certificate, birth certificate and their marriage certificate, where applicable, and send them to each of the institutions the person dealt with. As with probate generally, it's a good idea to get several certified copies, as some companies won't accept copies.
How intestacy rules work
Once probate has been granted, there are strict rules dictating how someone's assets are distributed if they die without a will.
If the person was married or in a civil partnership, and they had no children, the spouse will inherit the estate.
If the deceased had children, then the rules are slightly more complicated.
In England and Wales, the first £250,000 of the estate will pass to the spouse. If the estate is worth more, then half of the excess will pass to the spouse, and the remaining half will be divided between the children equally.
Northern Ireland is almost the same as England and Wales – the spouse gets the first £250,000 and, if there is one child, the rest is split between the child and the surviving spouse. But if there are more children, then one third of the estate (after the first £250,000) goes to the spouse, and the rest is split between the children.
In Scotland, the spouse will inherit the house (if it is worth up to £473,000), or a cash lump sum worth £473,000 if it is worth more. They are also entitled to up to £50,000 in cash and furniture worth up to £29,000. The will also receive a third of the remaining estate. Any children will inherit the remaining two-thirds of the estate between them.
Find out more: Who can inherit if there's no will?
When is a will invalid?
Just because someone has written a will doesn't necessarily mean it's still valid when they die.
Certain actions, such as getting married, will over-ride a pre-existing will, so it's important to review wills periodically.
If a will exists, but is deemed invalid, the estate will be treated as intestate and divided according to the intestacy rules (as above).
Make sure your will is in order: How to make a will
Do you need a solicitor?
If you're willing to do probate yourself, you could save thousands of pounds compared to hiring a professional. That said, it can be time-consuming.
If the person who's estate you are settling had particularly complicated affairs, such as owning overseas property, or was insolvent, it may be worth considering a probate solicitor.
- Need help with probate? Download our free checklist from Which? Legal Probate to help you through the process.