When a person dies in England and Wales, all their personal assets, including property, bank accounts, investments and personal belongings in their sole name collectively form part of their estate. Assets in joint names usually pass to the surviving owner by survivorship.
Technically if an estate exceeds £5,000, personal representatives are required to obtain legal authority from the Probate Registry before they can collect in the estate. This authority is known as the Grant of Representation and it allows relatives to close bank accounts, dispose of property and cash in investments. But, this is where it can get confusing. One of two Grant of Representation can be issued, Grant of Probate and Letters of Administration.
A Grant of Probate is only issued to named Executors of the Will while Letters of Administration are issued to the persons entitled under the rules of intestacy if the deceased died without a Will.
To help you decide which Grant to apply for, let's take a closer look at the difference between Grant of Probate and Letters of Administration.
When a person makes a Will, they need to appoint at least one Executor. Real consideration should be given to the person appointed as Executor since it carries a high level of responsibility.
The Executor has the power to dispose of assets, transfer funds to beneficiaries named in the Will and carry out essential tasks required to administer the estate. Therefore, it is imperative that the person chosen is reliable, trustworthy and capable of dealing with complex administrative processes.
Even though the power to administer the estate is derived from the Will and the appointment takes effect immediately on death, being a named Executor is sometimes not enough. Most financial institutions will not automatically allow the Executor of a Will access to financial accounts without having obtained a Grant of Probate first. Different banks will have different thresholds and requirements for releasing funds. The Grant of Probate is essentially a legal confirmation that the Will is valid and has been officially registered by the Court.
Once a Grant of Probate has been issued, it specifically names the people who are responsible for the administration of the Estate. Financial institutions need this information to be sure they only transfer funds to the people authorised to manage the Estate. This process has been put into place to protect both financial institutions and relatives from becoming victims of fraud.
Letters of Administration are usually issued to the persons entitled under the rules of intestacy (or their guardians if they are minors) where the deceased without a Will.
What does Letters of Administration mean? It is essentially a grant of administration by the court allowing a named individual to administer the estate.
Why is this necessary? If the deceased died without making a Will, it means that no specific person has been appointed to manage the estate. In such cases, the court does not automatically assign authority to manage the deceased person's affairs. It is up to family members to apply to the Court for Letters of Administration which gives them the legal right to close bank accounts and transfer funds etc. and therefore unlike an Executor, the Administrator does not have any legal authority until Letters of Administration has been granted.
This sounds simple in principle but in practice, it can cause problems. Particularly if family members cannot agree who is the best person to manage the Estate. In such cases, it is common for the Court to get involved to resolve disputes. This is not only time consuming but will result in extensive costs being incurred. It is for this reason that it is always beneficial to make a Will.
Letters of Administration may also be required in cases where there is a valid Will and named Executor but that person named has not or cannot apply for a Grant of Probate.
There are a number of circumstances where this might be the case. Perhaps the named Executor has passed away or is incapacitated in some other way. Or perhaps they simply do not wish to act as Executor due to a family conflict. Whatever the reason the only way to resolve the issue is for one of the main beneficiaries of the Will to apply for Letters of Administration to replace the named Executor. This is known as Letters of Administration with Will annexed as the contents of the Will and how the estate will be distributed is still valid.
To avoid this scenario, it is a good idea to name a substitute Executor when drawing up a Will. The substitute Executor, who should also be reliable and responsible, will then step in if the main Executor cannot or does not wish to manage the Estate.
If you would like assistance drawing up a Will or need to apply for Letters of Administration or Grant of Probate. Myerson has a team of specialist solicitors who are experienced in dealing with all aspects of Wills, Trusts and Probate Law. Get in touch with our specialist Probate team or call us on 0161 941 4000 and we will be in touch.