wrong people applying for probate

Rooibos

Thank you - hopefully the mother will get some good advice in a couple of days when she meets with a solicitor. Just hope it won't be too late. The death was registered last week.

NordicNoir

nom_de_plume wrote: »

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.

Thanks, I did not know that. Do you, by any chance, have a link to somewhere that describes how this works? Please do not think that I doubt you, it is just an area that I would like to learn more about!

Mojisola

nom_de_plume wrote: »

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.

But who also could be.

The child is the only person to inherit in this situation so whoever is administrator will have to work on behalf of the child.

The caveat is a good idea.

purple_haze

As a minority arises (i.e. the whole estate passes to the deceased’s child who is under 18), (a) the child’s surviving parent is the person first in line to take out the grant of letters of administration and (b) the grant can only issue to a minimum of two persons so she will have to nominate a co-administrator to take out the grant with her.

The surviving parent chooses whom she nominates as co-administrator – the only criterion is that the person must be ‘a fit and proper person’. There is a prescribed form for effecting the nomination.

Once the child’s mother and her co-administrator have the grant of letters of administration, they will have the authority to deal with the deceased’s assets, which will include gaining access to the deceased’s property.
The only way the deceased’s relatives would be able to obtain the grant , and thereby the authority to deal with the deceased’s assets, would be by swearing in the oath leading to the grant that the deceased died without issue (i.e. without children or grandchildren etc.). This is not uncommon where the deceased had never married and the deceased and his family had no contact with the deceased’s child; not so common where, as here, the deceased was married to the child’s mother.

If this happened, the child’s mother would need to apply to the probate registry to have the grant revoked (although this would be a formality as the deceased is presumably named on the child’s birth certificate). And there could be serious consequences for the family member who lied on oath.

nom_de_plume

Rooibos wrote: »

Thank you - hopefully the mother will get some good advice in a couple of days when she meets with a solicitor. Just hope it won't be too late. The death was registered last week.

What size of estate are we looking at here? Is the home owned and a part of the estate? Obtaining probate is not an overnight affair and takes weeks and months, not days.

One area of concern would be others gaining access to bank accounts via a death certificate if monies contained therein are smallish sums. I guess, but don't know for sure, that would be an issue for the banks if they are effectively defrauded.

System

the child’s surviving parent is the person first in line to take out the grant of letters of administration

Are you sure about this? I can't find anything to support the theory that a divorced spouse can do this on behalf of a minor

purple_haze

I'm positive. The order of priority in applying for the grant is the same as the order of entitlement to the residuary estate as set out in s46 of the Administration of Estates Act 1925.

In the case of an unmarried intestate, his issue are entitled to the residuary estate on the statutory trusts. If his issue is a minor, the minor's surviving parent and the surviving parent's nominee apply for the grant for the use and benefit of the minor - see rule 32 of The Non-Contentious Probate Rules 1987 here

Rooibos

Just to provide an update - the solicitor has been met with and all matters are now being dealt with by the legal team. The mother was advised that the family applying for probate, changing locks and not allowing the child to visit the house with the mother were an offence. The legal team will now be contacting the family to request return of keys and all paperwork.
Thank you for the helpful support and advice - still not the most ideal of situations with the family not speaking to the mother or the child.