Probate: who should apply?

20th October 2023

A grant of probate gives someone the legal authority to deal with a person’s assets, such as money, investments or property, after they have passed away. Whether or not probate is required will often depend upon the size of a person’s estate or what is in it. Different institutions, such as banks, have different thresholds on the value of assets before they require a grant of probate.

Who can request probate also depends on if there is a will in place or not. If a will has been made, one or more executors will have been named, then it is their responsibility to apply for probate. An executor can choose to forgo their right to act as an executor if they wish. This can be done in two ways:

  • The first is to hold ‘power reserved’ which allows other executors to carry out the course of probate but allows the executor to reserve the right to re-join the process later if necessary.
  • The second is where an executor may opt to give up their right to apply for probate entirely, known as ‘renunciation’, if they do not wish to be involved or are unable to.

If there is a will, the most ‘entitled’ person can apply for probate. Usually, this is the closest living relative of the deceased, namely the surviving spouse or the civil partner. HMRC has inheritance calculator to help assess who may be the closest relative, but legal advice should be sought to avoid and resolve any disputes which may arise. In the case of a will not being made, this is called a grant of letters of administration.

Once either a grant of probate or grant of letters of administration has been given, the executors are now able to deal with the deceased’s estate, in accordance with their will or the law.

For further advice and support with your probate application, please contact Mark Pattenden, Partner.

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