wrong people applying for probate

Rooibos

Hi - can anyone please advise what happens if the wrong people apply for probate? Under rules of intestacy I understand that it should be the deceased's child. Deceased wasn't married. As the child is a minor I understand that the remaining parent should act as the personal representativeof the child, however what happens if other family members apply before the correct person does - I.e the child's mother? They have also changed locks to property and told the child's mother she must not enter the property. In this case the mother found out later that it was actually her responsibility. Does the judge automatically query the application or is probate granted on the basis of who applied first? There are no issues with parental responsibility and the child lives happily with the mother.

Thanks for any advice.

MichelleUK

Your post is a little confusing - please can you clarify if I have understood correctly?

The father of the child has died. The mother was never married to the child's father. The mother and child did not live with the father? The house that has had the locks changed, is not the house where the mother or child lives?

nom_de_plume

That's how I read it.

I also read it as there being some bad feeling between the parties. The legal route, as I understand, would be to lodge a caveat at the Probate Registry - link here

Assuming whoever is currently applying for probate fills in form PA1 correctly (ie enters the child as a relative) I have no idea if the court would question their application when there is clearly a closer living relative. Maybe a phone call to the Court may answer that one but a Caveat sounds the safest option.

Mojisola

Rooibos wrote: »

Hi - can anyone please advise what happens if the wrong people apply for probate?

Under rules of intestacy I understand that it should be the deceased's child. Deceased wasn't married. As the child is a minor I understand that the remaining parent should act as the personal representativeof the child, however what happens if other family members apply before the correct person does - I.e the child's mother?

If there isn't a spouse and the only child is a minor, a close blood would usually apply - a parent or sibling.

Rooibos

Just to clarify - the parents were married for 15 years. The mother fled the family home due to domestic abuse and the father's alcoholism. They divorced last year. The father stayed in the family home and has now passed away. The father's family have already applied for probate and changed the locks to the house. However legal advice tells us under intestacy rules the child is next of kin, and as a minor, the parent with whom the child lives should act as the child's personal representative. There are concerns that probate could be granted to other family members who are less qualified and therefore just wondered how easily a judge grants probate. It is unknown at the moment whether they are applying as close relatives or as the child's personal representative in lieu of the mother.

BobQ

Rooibos wrote: »

Just to clarify - the parents were married for 15 years. The mother fled the family home due to domestic abuse and the father's alcoholism. They divorced last year. The father stayed in the family home and has now passed away. The father's family have already applied for probate and changed the locks to the house. However legal advice tells us under intestacy rules the child is next of kin, and as a minor, the parent with whom the child lives should act as the child's personal representative. There are concerns that probate could be granted to other family members who are less qualified and therefore just wondered how easily a judge grants probate. It is unknown at the moment whether they are applying as close relatives or as the child's personal representative in lieu of the mother.

The child's mother should apply for a Grant of Representation (Letters of Administration). If anyone else has applied for a Grant they should have indicated that the child exists on the form. If they have not done so they have probably committed an offence.

Even if another blood relative has been given a Grant, they are legally obliged to comply with the law on intestacy which means that the child or children of the deceased inherit the estate.

Are you sure there is no will? If his family found one, they could be acting on that which might name an executor. In that case, if the child is not provided for then the mother should ask a solicitor make an application to challenge the will.

MichelleUK

The rules for applying for probate (from the Probate Service PA2 document) are:

wrote:

Who can apply for probate?
You can apply for a grant if you are over the age of 18 and:
• you are an executor named in the will;
• you are named in the will to receive some or all of the estate (if there are no
executors, or if the executors are unable or unwilling to apply); or
• the deceased person did not make a will and you are their next of kin, in the following order of priority:
- lawful husband or wife or civil partner (a civil partnership is defined as a partnership between two people of the same sex which has been registered in accordance with the Civil Partnership Act 2004). The surviving partner of co-habiting couples not in a marriage or civil partnership are not entitled to apply for a grant.
- sons or daughters (excluding step-children) including children adopted by the deceased. (Children adopted out of their biological family can only apply in the estates of their adoptive parents and not their biological parents.)
- parents
- brothers or sisters
- grandparents
- uncles or aunts
- If sons, daughters, brothers, sisters, uncles or aunts of the deceased person have died before the deceased, their children may apply for a grant.

As the mother had divorced, it does seem that only members of the fathers family can apply for Probate (strictly, Letters of Administration as there was no will). Under the rules of intestacy, in this case, all of the estate would be inherited by the child (or children) of the deceased.

The history sounds very sad indeed and if there is any concern that the family will not administer the estate as per the law, the mother should probably get legal advice quickly.

Rooibos

Thanks for advice. The mother is does have an appointment with a solicitor in a few days but is worried the other application may be well under way.


There are a number of concerns surrounding the family being granted letters of administration - for one - will they be the ones to appoint trustees? If that's the case it's likely they will not appoint the mother which could lead to further complications down the line should anything happen to her.


Hopefully all will become clearer after the meeting

getmore4less

I thought I posted

Get a caveat in ASAP to stop any other application.

nom_de_plume

MichelleUK wrote: »

The rules for applying for probate (from the Probate Service PA2 document) are:

As the mother had divorced, it does seem that only members of the fathers family can apply for Probate (strictly, Letters of Administration as there was no will). Under the rules of intestacy, in this case, all of the estate would be inherited by the child (or children) of the deceased.

The history sounds very sad indeed and if there is any concern that the family will not administer the estate as per the law, the mother should probably get legal advice quickly.

As the closest relative is the child who is a minor, they would need to be represented by an adult who would not necessarily need to be a relative of the deceased so the OP is correct in their original assumption as to her entitlement to make the application.

Initially, lodging a Caveat will almost certainly be £20 well spent - https://www.justice.gov.uk/courts/probate/caveats

nom_de_plume

Excerpt_from_link_above wrote:

In what sort of circumstances are caveats used?

it is not possible to give a comprehensive list; but these are a few typical examples:

• there is some allegation concerning a will e.g. It is not the last will, the deceased was not "of sound mind" when it was made, it was not properly signed and witnessed, it has been tampered with in some way.
• there is dispute about whether a will exists
• the person intending to apply for a grant of representation may not be entitled to do so
• there is a dispute between two or more people equally entitled to apply for grant of representation
• allegations that the person applying for the grant of representation is not a "fit and proper" person

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