Probate: Who Can Apply?

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Who can apply for probate depends upon whether the Deceased left a Will, or not.

Where there is a Will

If a Will is left the person with the responsibility for applying for probate is called the Executor, and the Will names who this is to be.

Common issues are:

i)              Locating the Will – this may be amongst personal papers, or held with a local Solicitor, trusted friend or other professional.

ii)             The death of an Executor. Most wills appoint substitute executors, if none are alive then a beneficiary can apply for probate.

iii)            If an Executor is unwilling to apply, then a deed of renunciation should be signed to enable a beneficiary to apply.

iv)           The Executor cannot be found. This can be complicated and legal advice should be sought as you would need the Court’s permission for someone else to apply for probate. This will require proper attempts to have been made to trace the Executor.

v)            The Executor does not have the mental capacity to apply for probate. If a power of attorney has been obtained then the attorney may apply on behalf of the Executor.

Where there is no Will

If the Deceased did not leave a Will, then the person who applies for probate will be known as the Administrator.  Their entitlement is set out in the Intestacy Rules ad is broadly dependant on a family relationship (it should be noted that unmarried couples are treated very differently under intestacy).

Common problems that can arise in regard to an entitlement are as follows :-

i)              Unmarried couples may find they have no entitlement to apply.

ii)             Confirming that no Will exists.  It is prudent to undertake a search with a Solicitor for any Will that may exist.

iii)            Identifying which family member should apply for Probate.

iv)           Managing family relationships, we find that in cases of intestacy the appointment of a professional to prepare the estate accounts can ensure that all family members are happy with the estate distribution.

For any probate questions, please contact Emma Fuller on 01509 212108.

Emma Fuller is head of the private client team at EHL; our solicitors in Loughborough are experts in their fields and dedicated to quality client care. If you would like to find out more about our solicitors in Loughborough please contact us.

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