If someone has possessions, particularly property or items of value, they should make a will clearly stating to whom they want their possessions to go after they die. A will should also say whom they want to manage their estate (the executor) and make sure their various possessions are transferred to the correct people.
Unfortunately, research has shown that two-thirds of adults in the UK have not made a will.
Even where the deceased has made a will, they have often forgotten to name an executor, or they have appointed executors who either are not allowed or are unwilling to assume the responsibility.
Such a situation can make dealing with the deceased’s estate even more complicated.
In these cases, the deceased’s closest living relative, or next of kin, must apply for a letter of administration to be the administrator of the estate.
A letter of administration has the same purpose as a grant of probate, and both are collectively called grants of representation. An executor named in a will has to apply for a grant of probate. When there is no executor, the next of kin must apply for a letter of administration, so that they can carry out the job of an executor.
Who is the next of kin to the deceased?
If the deceased was married, the next of kin will be the husband, wife, or civil partner. This is the case even if the couple was separated when the deceased died.
If the husband, wife, or civil partner has also died, then the next of kin will be any surviving adult children, including adopted children.
Unfortunately, unmarried partners cannot apply to be an administrator, no matter how long they have been with the deceased.
If there are no surviving adult children, then the responsibility for applying to be the administrator goes to the parents, then siblings and so on, according to the intestacy rules. (Please note: the intestacy rules in Scotland are different from in England and Wales.)
If you are in doubt as to whether you qualify to be the next of kin, a solicitor specializing in probate can help you. Alternatively, the government has created a useful inheritance calculator that can offer guidance.
Applying for a letter of administration
You cannot apply for a letter of administration until the death has been registered and the correct amount of inheritance tax has been paid on the estate. Calculating inheritance tax can be complicated, so it would be a good idea to speak to a specialist solicitor for help. Some licensed conveyancers and conveyancing solicitors may be able to advise on inheritance tax. The legal costs can be paid out of the deceased’s estate rather than your own money.
You can then apply for a letter of administration online once you have the original death certificate, or an interim death certificate where a coroner is conducting a post-mortem, and the completed inheritance tax return.
In cases where an executor was not named in the will, or where the named executors were unable or unwilling to assume the role, you will also need to provide the original will. The probate registry will keep the will as it becomes a public document. The contents of a will could be challenged by anyone who is disappointed that they are not beneficiaries. It would be up to a court to decide whether their claim was justified.
As the administrator of the estate, you are also required to put a notice in The Gazette, which is the official public record, and in a local newspaper so that anyone who believes they were owed money by the deceased can put in a claim to the estate.
Any legal action, from either potential beneficiaries or creditors, can cause a delay in the transfer of property to beneficiaries named in the will. As an administrator, you will have to defend against such claims and any legal costs can be paid out of the deceased’s estate.
If there is no will, then any possessions of the deceased, including property, are distributed according to the intestacy rules.
Assuming there are no legal actions, you can then contact a licensed conveyancer or solicitor to help transfer any property to the beneficiaries. A licensed conveyancer or solicitor will want to see a copy of the letter of administration to make sure that you have the right to transfer the property. If you decide not to use a licensed conveyancer or solicitor, you will need to apply to the Land Registry yourself using Form AP1 and send a sealed or certified copy of the letter of administration and a document called an Assent (Form AS1). The Land Registry will record the beneficiaries as the new owners of the property.
When don’t I need to apply for a letter of administration?
Sometimes, depending on how the deceased owned a particular property, you won’t need a letter of administration.
For example, if a property was owned jointly by the deceased and someone else as a joint tenancy, then the deceased’s share of the property will automatically go to the other owner or owners and a grant of probate is not needed. This is often, but not always, what happens with properties owned by husband and wife or civil partners. However, the deceased’s share of the property does not automatically go to the other owner or owners if the property was co-owned as a tenancy-in-common.
A letter of administration is also not needed if the deceased owned a property in trust for the benefit of someone else, or if the deceased was a beneficiary of a property held in trust for him.
A conveyancing lawyer will be able to advise you on whether you need a letter of administration to transfer a particular property to the beneficiary or beneficiaries.
Acting as the administrator of a deceased person’s estate is a great responsibility, and it can also be quite stressful, especially if the deceased was also a loved one. Our friendly and impartial team of conveyancing lawyers at Phew Conveyancing can help you manage the process. Please contact us for free initial legal guidance.