Do I Need a Letter of Administration, or a Grant of Probate?
Dealing with the death of a loved one can be a traumatic time. Understanding the grant of representation process, and particularly whether you need letters of administration or a grant of probate, can help ease some of that stress. Our experts explain what is involved in the process here.
When someone dies in England and Wales, all of the personal assets that they owned form part of their estate. These assets include property, bank accounts, investments, and other personal belongings.
If this estate exceeds the value of £5,000, the deceased’s personal representatives are required to obtain the legal authority to collect and manage the estate. This authority is known as a grant of representation. Once this has been issued, you are able to access the deceased’s bank accounts and other investments and start dealing with the estate.
Confusingly, one of two grants of representations can be issued to you:
Understanding which grant you need is important when dealing with your loved one’s estate.
What is the difference between a letter of administration and a grant of probate?
The main difference between the two grants is related to whether the deceased had a valid Will or not. A Grant of Probate is only issued to the named executors of the Will, while a Letter of Administration is issued to the person who is entitled to inherit under the rules of intestacy, if the deceased died without a Will (known as intestate). In certain circumstances, where there is a valid Will but no executor, a Letter of Administration with the Will annexed may be issued.
Grant of Probate
When someone makes a Will, they should appoint at least one executor. An executor has the power to control the deceased’s assets, including transferring funds, disposing of any assets, paying debts, and sharing any money or property between the nominated beneficiaries.
Most financial institutions will not allow an executor to access assets if they have not obtained a Grant of Probate first; this is legal confirmation that the Will is valid and has been officially registered by the Court.
Letters of Administration
If the deceased has died intestate, a Letter of Administration is usually issued to the person or people entitled under the rules of intestacy (or their guardians, if they are minors), allowing the named individual or individuals to administer the estate.
The main difference between this and a Grant of Probate is that no specific person will have been appointed to manage the estate, because there is no valid Will. In addition, in this scenario, the Court does not automatically assign an authority to manage the deceased person’s affairs. It’s up to family members to apply to the Court for Letters of Administration.
The duties of the executor and the administrator are essentially the same, with the only difference being in how they are appointed.
Does Everyone Need a Grant of Probate or Letter of Administration?
For estates valued at £5,000 or less, or where the person who died held their assets jointly with another person, you will not need a Grant of Representation to access these funds. However, banks, insurance companies, and other financial institutions may have internal rules which will require other documentation in order to grant you access to the funds.
You will also not need a Grant of Representation if the deceased was insolvent, or where their debt was greater than the sum of their estate.
Property owned only by the deceased or with another individual as ‘tenants in common’ will form part of their estate, and therefore the value of that property should be included. If they owned a property with another person as a ‘joint tenant’, however, this will not form part of their estate, and the property will pass directly to the other owner.
In addition to this, if an asset is held in a trust, it shouldn’t require probate. Life policies, for example, are written in trust for the benefit of others and payable to the named beneficiary. Likewise, pension schemes will often pay a lump sum benefit, which will also be held in a trust. By design, these are held outside of the estate and therefore don’t rely on a Grant of Probate to access.
Applying for a
Grant of Probate
If the deceased had a Will and you are a named executor, there are a number of things you will need to do before applying for a Grant of Probate.
First, you will have to register the death within five days. After this, you will have to value the estate by going through all bank accounts and pension providers, and calculating the value of any property that they owned. After valuing the estate, you will have to calculate if there is any Inheritance Tax to pay and fill in any relevant tax forms.
When the death has been registered, the estate has been valued, and you have determined whether Inheritance Tax is owed, you should then be in a position to complete a probate application form. You can find this on Gov.uk.
Again, while this process can be completed without a solicitor, it is advisable to get an expert probate lawyer to assist you, so that there are no legal issues or mistakes further down the line.
Applying for a
Letter of Administration
If a loved one has died without a valid Will or without naming any executors who can undertake the role, you must decide whether you are the appropriate person to undertake the role of administrator. There are then certain steps you must complete before applying to the Court for a Letter of Administration.
First, you need to register the death within five days. Then, you need to ascertain whether Inheritance Tax is due. You will then be able to access a form from the Gov.uk, and fill in all the details of the deceased’s estate. It is vital that all of the information is correct, so we advise getting assistance from a solicitor with this process.
Getting Expert Legal Help to Apply for Probate
Many executors and administrators go through this process without a solicitor. It’s perfectly legal to do this, but if the estate is complex, it’s best to get legal advice and avoid any potential pitfalls. For example, we recommend getting legal advice if:
Executors are personally liable for any mistakes when dealing with Inheritance Tax or problems with distributing assets after a Grant of Probate has been issued. If there are any problems with how the estate has been dealt with, such as an unreasonable delay or a misuse of legal powers, you are likely to need legal assistance.
Any legal fees can be paid for from the estate of the deceased.
