What happens if you don't apply for probate?

[MummyDoIt]

Dad died almost two years ago. He didn't have a will. Mum hasn't applied for probate and has no intention of doing so. She says there's no need as everything has been transferred to her without it so she doesn't need it. I think if she doesn't, we (the children) are going to be in an awful mess when she dies as we'll have to apply for probate on Dad's estate first, then hers, plus she doesn't have a will either. What can I say to convince her she has to do this?

That is exactly what we are going through at the moment, and you are right: it is an awful mess. Dp's grandfather died 10 years ago, and nothing was done (he didn't have a will either), and now we are in the process of sorting it all out. (Mil lied about it all, but that's another story).

On top of excrutiating amount of solicitor's money, it might also cost us our relationship (due to the amount of stress)

Please get your mum to sort it out.

is it not illegal to not go to probate?

If there is no will then you need a Grant of Letters of Administration, not a Grant of Probate. The person entitled to apply to be the Administrator is generally the person who is entitled to the assets, according to the division of the assets which is set out by law. See here (that is a firm's site bt it does give quite a good summary).

If all your Dad's assets were held jointly with your Mum, then she'll have automatically inherited them without the need for a Grant. Similarly, if the estate was very small, some institutions will agree to release assets without the need for a Grant.

If, however, there are assets still in your Dad's name which haven't been properly transferred to her (assuming of course that she was entitled to receive everything under the intestacy rules) then you will have a problem when she dies. Her Executor/Administrator will have to administer your Dad's estate before he/she/they can administrate your Mums.

It might be worth phoning your local Probate Registry as they might be able to give you more specific advice. details here

Hope that helps

I think you need to see a solicitor. Whilst there is a limit on the size of estate you need to HAVE to go to probate, if a house is involved things could get very complicated. My grandmother died in 2007, she had no will, but she had pretty much nothing to leave, as she lived with my grandad who was still alive, the house was in his name, she only had her pension in her own name. When my grandad died last year he left no will either, but my mother and uncle had to sort out the house, his car, all the furniture etc.

yes it will be a mess for you if she doesn't sort it out. Even a half hour free appointment with a solicitor would be better than nothing and might convince her of the need to do something now. Good luck.

I think everything they owned was in joint names. The house certainly is. No car as that was motobility and went back when Dad died. Pensions, insurance policies, etc, have either paid out already or Dad transferred them into Mum's name when he knew his cancer was terminal.

I think I will give the Probate Registry a call, though, and find out for sure. And I will keep nagging at her to make a will herself.

you also have to make sure EVERYTHING is transferred. My dad died nearly 5 years ago and I dealt with the grant of probate and got all that sorted and the house which had been in his sole name, transferred to mum.
Mum died earlier this summer and we planned the funeral and arranged for her to go in the family grave. The plot was bought 50 years ago when mum and dad's first son died aged 3. They bought it 3 deep so they would all be together. My brother and dad were in there so we thought it would be simple enough for mum to go in as planned. However, a few days before the funeral we were told mum could not be buried in the family grave as it was in dad's name and it needed to be transferred into her name before she could be buried!
FFS! I went absolutely mad. I was 3,000 miles away and some numpty at the council was insisting I get the paperwork sorted. What was I supposed to do, get dad to sign a transfer?
It was a complete oversight when the grant of probate was applied for, nobody even thought that the grave ownership had to be transferred. Thankfully a brilliant solicitor sorted it and we were able to lay mum to rest. Could really have done without all that stress though.

You have had good advice on here OP so I hope you manage to get things sorted. She really needs to make a will, things are far less painful when there is a will as opposed to someone dying intestate.