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If someone dies without making a Will- does probate always happen?

(21 Posts)
LittenTree Fri 28-Sep-12 12:19:24

Like it says, really!

The person concerned had a wife, but he also had adult DC from his first marriage; his first wife died.

Should his estate go to probate or can it just all go to his second, extant wife?

lalalonglegs Fri 28-Sep-12 12:55:51

It will have to go to probate if (I think) it is more than 250k - this was the case a couple of years ago, may have gone up since. If the estate is more than 250k, then provision has to be made for any surviving chidren, dividing the rest of the estate 50-50 between them and spouse. I know a little about this as it happened to a relative, I think the tax implications were also more complicated sad.

IT'S REALLY IMPORTANT TO HAVE A WILL - DON'T THINK THAT YOUR SPOUSE/CIVIL PARTNER WILL AUTOMATICALLY INHERIT.

thereinmadnesslies Fri 28-Sep-12 12:59:54

You will need to apply for letters of administration unless the estate is under £5K. There are rules about how the estate should be divide, see www.direct.gov.uk/en/Governmentcitizensandrights/Death/Preparation/DG_10029802

LittenTree Fri 28-Sep-12 14:50:37

Hang on- 2 posts possibly contradicting each other...!

lala is saying if the estate is > £250K it will have to go to probate, Madness says >5K (I am assuming letters of administration are the same as probate? The link seems to imply that).

I'd guess the estate is worth around £150K, tops.

To complicate matters, the deceased died in 1996!

MOSagain Fri 28-Sep-12 15:42:52

Am I reading this right? The person died 16 years ago and their estate has not yet been deal with?

sittinginthesun Fri 28-Sep-12 15:48:14

Therein is right.

The £250k is the max sum that the spouse inherits as a lump sum.

LittenTree Fri 28-Sep-12 15:49:23

No, you're not reading it right! I am asking if an intestate estate has to go to probate or not, or should have done so. The 15 years ago is only relevant due to the possible changing of the sums of money that 'attract' probate in the intervening years.

prh47bridge Fri 28-Sep-12 16:25:13

I think you have misunderstood what probate is all about.

If someone has made a will the executors apply for a grant of probate. If there is no will someone must apply for a grant of letters of administration, which makes them an administrator of the estate. The purpose of these documents is that it shows that the executor/administrator has the authority to deal with the estate. It has nothing to do with how the estate is distributed.

There is no legal limit above which you have to apply for a grant of probate or letters of administration. If all the banks, insurance companies, etc. are happy to release the funds without seeing a grant it isn't necessary. In general you don't need a grant if the estate is worth less than £5k or the deceased owned everything with someone else and the property passes automatically to the surviving owner. You generally do need a grant if the deceased owned shares, certain insurance policies or property held in their own name or as tenants in common. The bigger the estate the more likely a grant will be necessary.

For someone who dies today leaving a wife and children, if they haven't made a will the first £250k goes to their wife who also inherits their personal property and belongings. Anything over £250k is split in two. Half goes direct to the children. The wife has a life interest in the other half, which means she gets the benefit of it but cannot spend or dispose of it, so if it is cash she can spend the interest but not the capital. When she dies that money passes to the children - it does not form part of her estate.

If the deceased died in 1996 his wife should have received the first £125k of the estate with the remainder being split in two as per the last paragraph.

thereinmadnesslies Fri 28-Sep-12 16:28:17

What has happened to the estate in the last 16yrs?

I'm not a lawyer, my understanding is based on having dealt with my dad's intestate estate [disclaimer].

I had to obtain letters of administration (essentially the same as probate) which enabled me to value then collect the money in the estate. Part of this involved filling out a form which assessed if any inheritance tax was due. I then had to attend an interview with the probate service where I was required to swear on a bible that I would distribute the estate in line with the intestacy rules. The estate was about 200K, so under the amount of inheritance tax, but we still had to go through the process.

Do you know what sort of assets were in the estate? If the only value was in a jointly owned house for example, I'm not sure letters of administration would be required. If it was 150K in cash/investments, I think you need to follow the process.

I'm guessing from the 16 years lapse that you perhaps feel that the estate hasn't been divided properly by the 2nd wife?

thereinmadnesslies Fri 28-Sep-12 16:30:11

Sorry posts with prh47bridge who knows way more than me blush

MOSagain Fri 28-Sep-12 16:31:50

Really no need to be rude!

Collaborate Fri 28-Sep-12 16:58:03

MOS is right in questioning why the estate hasn't been dealt with in 15 years. Your post clearly says that. In fact it's just about the only thing it does clearly say.

LittenTree Fri 28-Sep-12 18:04:31

Really no need to be rude!

LittenTree Fri 28-Sep-12 18:10:41

Would it have helped if I'd said originally:

'Hypothetically, should probate always happen if someone dies without a Will, if that person has a wife, but also had adult DC from his first marriage; his first wife having died? Or can it just all go to his second, extant wife?'

Then, in reply to 2 contradictory posts maybe I should have said 'The events of the death happened 15 years ago. Do you think the sum necessary for Probate to be required will have changed since then?'

Would that have helped?

MOSagain Fri 28-Sep-12 18:11:59

sarcasm is the lowest form of wit

LittenTree Fri 28-Sep-12 18:14:36

I seriously am not getting your problem with this, MOS.

In you writing " Am I reading this right? The person died 16 years ago and their estate has not yet been deal with?" do I not detect a note of incredulity and disbelief from you where nowhere have I said 'the estate has not been dealt with', have I? You asked me if you were reading it right, I said 'no' because you were reading stuff that isn't there. So now I have rewritten my OP to attempt to remove the apparent ambiguity that stumped you- and am accused of sarcasm!

Collaborate Fri 28-Sep-12 18:54:28

It's reasonable to assume that the estate hadn't been administered, as if it had been,instead of starting this thread you would have found out whether probate had been obtained.

sittinginthesun Fri 28-Sep-12 20:09:04

You have had lots of good answers - what prh47bridge says is exactly right.

LittenTree Fri 28-Sep-12 21:44:17

But- what if I'm asking now to pre-empt what might be the result of the probate search I've applied for? So yes, I am finding out if probate had been applied for. My question was really (put another way), 'If probate wasn't 'done', could the simple explanation be that probate wasn't legally necessary because, under the circumstances I outlined, the estate would have automatically have gone to the second wife?'- which transpires to not necessarily be the case.

Lots of people reading lots of things into what I said, tbf! e.g. 'reasonable to assume'/ 'am I reading this right?', 'X is right in questioning why the estate hasn't been dealt with in 15 years' etc.

And I'd agree that I have indeed been given useful advice on here, prh47's knowledge being particularly welcome.

emsyj Fri 28-Sep-12 21:51:24

It could just be a simple case of all property having been joint - looking at my and DH's circumstances, a will would have very limited effect as we own 2 houses as joint tenants and have our bank accounts held in joint names, so if one of us died the other would simply send off the death certificate to the land registry and to the bank and they would take the deceased's name off. It wouldn't fall to be dealt with under the terms of a will as jointly owned assets pass by operation of survivorship and do not form part of the estate (other than for Inheritance Tax purposes).

So they may not have needed a Grant of Representation (it's only called probate if there is a valid will - for an intestate deceased it would be letters of administration).

Anecdotally, my experience with elderly clients is that the house is almost always held in the husband's sole name. That just seems to be 'the norm' for elderly couples. So her name might not have been on the property title and she may not have had any other assets in her sole name.

Hope that makes sense (feeling tired this evening...)

emsyj Fri 28-Sep-12 21:54:33

Oh poo, just realised it's the husband who died - ignore the last paragraph, they may have owned the house in joint names or it might have been held in the wife's name... Or it could just be that the transfer has never been dealt with properly.

I have come across a situation where the husband died, then the wife continued to live in the house for a good many years without dealing with the ownership and when she died, it was discovered that it had been in the husband's sole name - we had to get a Grant for his estate (some 10 years after his death) as well as her estate in order to deal with it.

<hopes that makes more sense>
<resolves to read OP more carefully in future>

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