For most deceased estates anyone can probate a Will without a lawyer by following the court’s process for probate application.
Most people do not possess the knowledge or skills to manage the legal process of applying for probate. They believe settling a deceased estate is a difficult legal process. As a result they engage the services of a lawyer and just pay the legal fees.
If the estate has business assets, overseas assets or the Will has complex instructions you will need to consult with a lawyer. Please note that when hiring a lawyer, you can hire them to provide information only. Or perform specific tasks and check what you have done. You do not need to hire a lawyer for the entire process.
However, the vast majority of deceased estates are not complex and a lawyer is not required to apply for probate with or without a Will.
Applying for probate of a Will without a lawyer will save you thousands of dollars!
Let’s work through the basic process of how to probate a Will without a lawyer.
What is a Deceased Estate?
When a person dies, the law automatically creates a trust in the name of the deceased person. The trust owns the deceased persons estate – their assets and debts.
The trust is referred to as “The Estate of the Late <deceased’s name>”. If the deceased person had a Will, the estate appoints an Executor from the Will. If there is no Will the closest relative can apply to the Court’s probate registry to become the Administrator of the deceased estate.
The Executor/Administrator of the Estate has the responsibility to take control and secure all the property and personal belongings of the deceased, pay debts and distribute the estate to the beneficiaries.
What is an Executor?
An executor is the legal personal representative of a deceased person. An executor is a person appointed by a Will to act in respect of the deceased’s estate upon his or her death.
The appointment of an Executor is only effective following the death of the Will maker. Once he or she has died then if you are appointed by the Will as executor you should decide very quickly whether or not you wish to accept the position. You are under no legal obligation to do so. If you don’t want to act as an Executor you will need to “renounce probate”. The testator may have discussed the appointment with you but frequently the Executor is unaware of the appointment until death.
Please read Why You Need a Legal Will
What is an Administrator?
When a person dies without a Will the legal personal representative is known as “the Administrator”.
What is Probate?
When a person draws up a Will, they need to appoint someone to administer their estate when they die. This person is the Executor. The Executor is responsible for carrying out the terms of the Will. The executor will sometimes need to apply for probate.
Probate means the official recognition from a court that a Will is legally valid. Lodge the application to the Probate Registry of the Court for a “Grant of Probate”. The grant is a document certifying that the Court recognises the authority of the Executor(s) to deal with the estate. This will enable the Executor(s) to collect the assets and pay any debts of the deceased person and then to distribute the estate to beneficiaries as directed by the Will.
On grant of probate, the original Will remains permanently in the Court. A copy of the Will is part of an original probate document which bears the seal of the Court.
Where there is no Will, or some part of the Will is not valid, the Executor(s) or the next of kin may need to apply to the Court to be the Administrator of the deceased estate. In this instance, the Court will issue a “Grant of Letters of Administration“.
Please read Probate: The Right to a Deceased Estate
If you are uncertain what to do ask a lawyer which type of court order you need.
Hiring a Lawyer
Obtaining probate from the Court is the only process where you may want to hire a lawyer.
The probate process is simple once you know who is going to apply for Grant of Probate/ Letters of Administration. In the first instance, the Executor(s) in the Will makes the application. Otherwise, if no Will, the closest relative by the rules of intestacy makes the application.
The probate application is no more difficult than opening a bank account. For a simple estate, containing a house, car, furniture, possessions, simple investments and bank accounts, you won’t need a lawyer.
If the estate contains a business, overseas assets or substantial assets you are best to seek the advice of a lawyer but you may still be able to manage most of the estate yourself to dramatically cut down the legal fees.
Lawyers love to administer a large, complex estate because they can bill the estate considerable fees for many months.
Please read The Right Way to Hire a Lawyer
What are the Duties of the Executor/Administrator?
The Executor/Administrator has a fiduciary duty to act honestly and fairly with the estate’s property and finances in consultation with the beneficiaries and relatives of the deceased.
The Executor/Administrator is responsible for managing the estate but he/she can employ agents, such as lawyers, accountants or real estate agents to perform work.
In the course of administering an estate, an Executor/Administrator will:
- Take care of funeral arrangements.
- Secure all property and personal belongings of the deceased.
- List all assets and liabilities, including the values.
- File an application for probate in some circumstances.
- Determine the order of debts and liabilities payments. In some cases this will be set out in the will, otherwise there are laws which tell you which assets to use first.
- Realize assets to pay debts.
- Close bank accounts.
- Lodge taxation returns for the deceased and for the estate.
- In some cases, arrange for documents to show that the Executor is the legal owner of certain types of assets.
- Pay debts and taxes.
- Distribute the net assets to beneficiaries according to the terms of the will.
- Transfer or sell real estate, motor vehicles, investments or other assets as required.
Multiple Executors
If there is more than one Executor named in the Will the forms need to be completed by all Executors. It may be convenient to have only one executor proceed with the application. The other executor(s) may renounce their duties.
One executor makes the probate application. In this circumstance, the summons should include a clause that leave is to be reserved to the other named executors to obtain a Grant of Probate. The probate registry will also require proof that the remaining executors have been put on notice of the application and reserve the right to make an application at a later date.
Renunciation of Rights to Administration of an Estate
Sometimes persons may renounce their right to become the Administrator. This often happens when parents or grand-parents are first in line to become the Administrator. They renounce their rights as they are old, don’t have knowledge of estate law and feel that someone else can better perform the task.
Example
John died intestate (without a Will). He has no wife or partner. There are no children. Under the rules of intestacy John’s parents have the right to administer the estate. However, John’s parents are old and feel that John’s brother, Jack, who is an Accountant, is the best person to apply for Letters of Administration.
John’s parents sign a form called “Renunciation of Administration in case of Intestacy”. They lodge the form with Jack’s probate application to the Court for Letters of Administration.
Administering a Deceased Estate with a Valid Will
If there is a Will you must carry out the wishes contained in the Will, where practicable, to the best of your ability.
Administering a Deceased Estate with an Invalid Will
If there is an invalid Will you must comply with the Intestacy Rules.
Administering an Intestate Estate (no Will)
Intestacy occurs when the Will does not dispose of either the whole or part of the deceased’s estate. Total intestacy occurs when the deceased failed to make a will at all, failed to make a valid will or made a valid will but all the beneficiaries have since died. Partial intestacy occurs when the deceased made a valid will but the terms of the Will do not dispose of the whole of the estate or one or more beneficiaries have since died.
The person who takes care of finalizing a deceased estate without a Will is called an Administrator.
If you are the spouse, de facto spouse or other direct family member of the deceased, and the deceased died without a Will, or the Will is declared invalid, then you can apply to the Court to become the Administrator of their estate. Following your application, the Court will issue a Grant of Letters of Administration in the name of the applicant. The Grant will then authorize and enable the Administrator to collect the assets of the deceased and to distribute them according to the State intestacy laws.
The duties of an Administrator are exactly the same as an Executor and include paying debts, collecting assets, finalizing tax affairs and distributing the assets in accordance with the Intestacy Rules.
Do I Need a Grant of Letters of Administration?
Not necessarily. The main reason that a Grant of Letters of Administration is required is that some organisations (namely Banks and the Land Registry) which hold assets of the estate will not release them to the Administrator for distribution without sighting a grant of representation from the Court. You will need to make a list of everything the deceased owned or was entitled to. Then make contact with the financial institutions concerned to establish whether they require a grant or not.
This will be more relevant for smaller estates. For larger estates comprising real estate, a grant of representation will almost certainly be required.
Intestacy Rules
Intestacy Rules are in place to determine how to distribute an estate when someone dies without a valid Will.
The intestacy rules govern the distribution of an estate to the next of kin such as spouse, de facto and issue (children & grandchildren). If there is no spouse or issue, then provision is made for parents, then brothers and sisters. Or nephews and nieces, then grandparents, then uncles, aunts and cousins.
Note: Your in-laws are not classified as next of kin and are not included in the rules of intestacy for the distribution of an estate. A step-parent is not next of kin and neither is a mother-in-law or a father-in-law.
The Purpose of the Rules of Intestacy
Intestacy occurs quite frequently. Half of all people who die do so without a Will. The aim of the legislation in each state/country is to try and produce the same sort of result as if the deceased had made a Will.
It identifies the deceased’s closest relatives as the main beneficiaries and assumes that these are the people that the deceased would most want to benefit. The rules make assumptions about who the deceased is closest to. The rules do not therefore take account of individual circumstances, such as, the deceased not getting along with other family members. The law does not take account for all types of individual family circumstances or disputes.
The rules are designed to act as a safety net to protect those who have failed, for whatever reason, to direct what they would like to happen to their net assets when they die.
Letters of Administration
An Administrator does not have authority to deal with a deceased estate until the probate registry at the court has granted Letters of Administration (which is a Court Order) giving the Administrator the right to deal with the deceased’s estate. It is similar to the Grant of Probate to the Executor of a Will.
The court in considering an application for Letters of Administration must be satisfied that the applicant is the appropriate person to administer the estate. The descending order of priority for people who the Court may grant Letters of Administration in instances of intestacy are:
- spouse (including de facto partner)
- children (over 18 years old)
- grandchildren or great grandchildren (over 18 years old)
- parents
- brothers and sisters
- children of brothers and sisters
- grandparents
- uncles and aunts
- first cousins
- If no such person exists or if, in the opinion of the court, the person concerned is not fit to be trusted with the responsibility, the Court can grant administration to any person it thinks fit.
Usually a beneficiary must survive the intestate person by at least 30 days to be entitled to share in the estate. Usually a de facto partner must have been in a continuous relationship with the deceased for a minimum period of two years. In most western countries the gender of the partner is not relevant.
The Role of the Administrator
The role of the Administrator is the same as an Executor except there is no Will providing instructions as to how the estate is to be distributed to beneficiaries. An Administrator has the right to deal with the deceased’s estate according to the rules of intestacy.
The Grant of Letters of Administration of the deceased’s estate is a court order making all the deceased’s assets become vested with (become the property of) the Administrator. For example, if the deceased held shares in a company, upon seeing the grant from the court, the company will register the Administrator as the shareholder in place of the deceased. This will enable the Administrator to sell the shares and distribute the proceeds in accordance with the intestacy rules. The legal authority of the Administrator to deal with the deceased person’s estate has been confirmed by the Court. This will satisfy those institutions who hold the deceased’s assets that the Administrator has the authority to deal with those assets and will give the administrator some protection from liability in dealing with the estate.
The basic procedure, common to all organizations, is to make contact (in person or writing) with the organization and request their procedure for transferring the assets in the Administrator’s name. You will need to complete some forms to identify yourself (you will need your ID such as driver’s license and passport), provide a copy of the death certificate, copy of Grant of Probate or Letters of Administration and instruct the organization where to transfer the funds.
If you engage a law firm to act as Administrator/Executor they write to the organizations (banks, etc.) to inform them of the deceased person. They enquire as to how to close the account(s) and transfer the funds to their trust account.
How to Probate a Will Without a Lawyer
Lawyers like to keep legal processes mysterious and obscure so that you need to hire a lawyer for any legal matter. They like to make out that probate and deceased estate administration is difficult. You’ll require legal knowledge and training to lodge an application with the court and complete the administrative tasks.
Nothing could be further from the truth.
Most legal tasks to apply for probate and administer a deceased estate are simple.
Most people can settle a deceased estate, of a relative or close friend, without engaging the services of a lawyer.
You can avoid expensive legal fees.
Probate can be performed by anyone who takes the time to learn the court’s procedure.
If you can:
- Search for items on the internet using Google or Bing.
- Download template forms & instructions from Court websites.
- Complete Microsoft Word forms on your computer.
- Create simple letters on your computer.
- Send and receive emails.
- Place an advertisement in the Public Notice section of your local newspaper
- Visit a court registry office, take a number and wait in the queue
How to Probate a Will Without a Lawyer
Whether you apply for probate, at the Court, depends on the value and complexity of the estate. If the value of the estate is very small then you may be able to avoid the probate process. However, if there are substantial sums of money (eg more than $10,000) and high value assets such as real estate, investments and businesses the Executor/Administrator will have to apply for probate.
Administering a Deceased Estate without Probate
When a deceased estate is small in value (typically under $50,000) and there are no property assets (ie. land or houses), no large sums of cash and no incorporated businesses you will be able to administer the estate without an application to the court for Probate. It doesn’t matter whether there was a Will or the deceased died intestate (no Will).
Financial institutions have varying rules which will allow access to the deceased’s accounts without a Grant of Probate or Letters of Administration if the estate is small. I recommend that you make an enquiry of the financial institution(s) regarding what is required to close the account and transfer the funds to the Estate’s bank account. Discuss this with the bank as each bank will have different limits for applying to close the account without probate. If the amount of money in the deceased’s bank account is more than the bank’s limit the bank will demand a court order so you will need to apply for probate.
Generally, if the amount of money is more than $5,000 the bank will require a Grant of Probate or Letters of Administration. The grant of probate proves to the bank assurance who is actually entitled in law to do so.
Who can become the Administrator of an Estate without Probate?
Generally, the holder of the original death certificate has the capacity to become the Administrator of the estate. This will normally be the closest relative and person who has witnessed and identified the deceased to the authorities (i.e. hospital, police, funeral director, etc.). If there is a Will you must carry out the wishes contained in the Will, where practicable, to the best of your ability.
The Deceased Estate is Insolvent
If the deceased estate appears to be insolvent, where there isn’t enough money to pay all debts and taxes, you should consult a lawyer for assistance.
Get legal advice about the priority of creditors.
Each State or Country will have laws setting out the order in which creditors get priority of payment.
The Executor or Administrator may become liable if debts are not paid in the correct order of priority according to the law.
How to Apply for Probate
Contact or visit your nearest Court probate registry.
The Court will give you a procedure to follow and an application form to complete. Most Courts have an online website containing information about how to make a probate application. The site will include application forms for download.
Most Courts require you to advertise, in the local newspaper, your intention to apply for probate. This ensures that there are no other interested parties that wish to administer the estate or contest the Will. Some States and Countries require a notice of your intention to apply for a grant of probate/letters of administration. It must be published in one or two places no sooner than 14 days prior to the submission of the probate application. You may be required to place a legal notice in the local newspaper. Also in the Court Website or Law Reporter journal.
Check the public notice section of your local newspaper. You can copy the wording of an advertisement and change the names of the applicant and deceased.
Example of Advertisement in Newspaper
Notice of Intention to apply for Grant
After 14 days from today an application for a grant of Letters of Administration on intestacy of <deceased’s name>
late of <address of deceased>,
deceased, will be made by <name of applicant> to the <name of court> at <your city>.
You may object to the grant by lodging a caveat in that registry.
Any creditors, beneficiaries or other persons having any claim or claims in respect of the estate of the above named Deceased who died on <date of death> are hereby required to send in particulars of their claim to the undersigned within six (6) weeks from the date hereof at the expiration of which time the Administrators will proceed to distribute the assets of the Deceased among the persons entitled thereto having regard to <reference the Act that applies to your state> and to the claims of which the said Administrators shall then have had notice.
Lodged by <name and address of the applicant>.
Applications to the Court Registry
Submit applications to the Court registry by post or by attending the registry in person. The Registrar/Deputy Registrar or a Court clerk will act as your witness and accept the application.
There is a probate filing fee which can be based on the value of the estate (ask your Court registry). This is why you need to determine the financial position of the estate before applying for probate.
Some Courts require an inventory of assets and liabilities for the estate. This is mainly because the Court calculates the probate application fee on the value of the estate.
Allow 2 or 3 weeks from receipt of the application for straightforward grants of probate. More complicated cases may take longer.
The Grant of Probate/Letters of Administration is a certificate with the Court’s official seal.
Visit the court to collect your certificate for grant of probate/letters of administration. Or request it mailed to you by registered post.
Once you have the Grant of Probate/Letters of Administration you have completed the process to probate a Will without a Lawyer.
Now you can administer the deceased estate to settlement with creditors and beneficiaries.
