Who has Power of Attorney after death if there is no Will?

When someone dies, their Power of Attorney is no longer valid, even if it was a Lasting Power of Attorney. Once the donor has died, their attorney has no authority to deal with their affairs unless they are named in the Will as an executor. If there is no Will, then someone will need to be appointed as an administrator to wind up the estate. 

We take a look at who has power to deal with matters after a death if there is no Will and the process involved. 

At Lockings Solicitors, we are estate administration experts, offering a full service, to include selling property where necessary. Our team has many years of experience and is used to dealing with all types of estate administration, including complex, contentious and high value cases. 

If you have been dealing with someone’s affairs and you need help now that they have died, we can provide the assistance you require. We know that this is likely to be a very difficult time. You will find our solicitors to be sensitive and understanding and we will go the extra mile to make the administration as easy as possible for you. 

Does an attorney have power to administer an estate if there is no Will? 

A Lasting Power of Attorney (LPA) is a valuable legal document that allows an attorney to deal with someone’s affairs during their lifetime, should they become unable to manage them. Depending on the type of Lasting Power of Attorney, the individual appointed can deal with property and financial affairs or health and welfare issues.  

However, the authority granted by any sort of Power of Attorney ends with the death of the person who signed the document. 

From the date of death onwards, the individuals who are entitled to deal with the deceased’s estate are either their executors appointed in their Will or if there is no valid Will, their administrators. 

Who can administer an estate if there is no Will? 

If there is no Will, then an estate passes to the deceased’s spouse or civil partner and/or relatives in a strict order of priority. Ususally, someone entitled to inherit will deal with the estate administration. They will be known as the administrator. 

The Rules of Intestacy

The Rules of Intestacy set out who is entitled to inherit when there is no Will. 

If the deceased left a spouse or civil partner and children, then the spouse or civil partner will inherit the first £322,000 of the deceased’s estate plus their personal possessions. The remainder is split into two equal parts. The spouse or civil partner will receive one, while the deceased’s children will share the other half equally.  

If the deceased had a spouse or civil partner but no children, the spouse or civil partner will inherit everything. 

If the deceased had neither a spouse or civil partner nor children, then the next relatives to inherit in order are parents, then siblings, then grandparents, then aunts and uncles. 

If a spouse and children are inheriting the estate, one of them can act as the estate administrator.   

What should an attorney under an LPA do when the donor dies?

It is important that an attorney stops acting under the LPA as soon as the donor dies. The original LPA should be sent to the Office of the Public Guardian together with a copy of the death certificate. 

What does the estate administrator do after a death? 

The estate administrator will be responsible for winding up the deceased’s affairs. If you have taken on the role of administrator, the first job is usually to report the death to the Registrar of Births, Deaths and Marriages. You will then be sent the death certificate. You can buy extra copies, which can be useful as all of the deceased’s asset holders will need to see a copy.  

You will then need to assess whether a Grant of Letters of Administration is needed. This is the document that gives the administrator the legal authority to wind up an estate. If the deceased left a Will, the authority is a Grant of Probate. 

A grant is needed unless an estate is a small estate. There is no exact definition of a small estate and each bank has its own probate limit, which varies widely from bank to bank. It could be anything from £5,000 to around £60,000. If the deceased had funds above the probate limit, a grant will be needed. A grant is always needed if the deceased owned a property. 

Paying Inheritance Tax

If a Grant of Letters of Administration is needed, you will also need to accurately value the estate. This will let you know whether Inheritance Tax is due. You need to find out the value of the deceased’s assets as at the date of their death. 

You can write to asset holders, sending a copy of the death certificate, and ask for a figure. Other assets, such as property and cars, can be valued by looking at the value of other similar assets or by obtaining a probate valuation. In addition, you need to find out a figure for other items of value such as jewellery and furniture. The estate’s liabilities also need to be included, including money outstanding on a mortgage, loan or credit cards. 

Inheritance Tax is payable on an estate valued at over £325,000, but there are a number of allowances available and you need to check which ones apply. Calculating Inheritance Tax is complex, so you may need to take professional advice to ensure that this is dealt with correctly.   

Applying for a Grant of Letters of Administration 

If Inheritance Tax is due, this must be paid first before a grant can be applied for. You will need to ask HM Revenue & Customs (HMRC) for an Inheritance Tax reference number. This can take a couple of weeks to be issued. 

There are a range of forms to be filled in to accompany the tax payment, dealing with each type of asset and liability held by the deceased.  

If the deceased held money in a bank, building society or National Savings account, you can ask for them to pay the Inheritance Tax directly to HMRC.  

Around two weeks after the tax has been paid, you can apply to the Probate Registry for a Grant of Letters of Administration. It can take three or four months or longer, depending on the Registry’s workload, for the application to be processed. 

Estate administration

Once you receive the Grant of Letters of Administration, you can start winding up the estate. You will need to send a copy of the grant to all of the asset holders. They will then be able to close the accounts and send you the funds. 

You will also need to clear all of the deceased’s liabilities. If they owned property, this can be sold. Once all assets and liabilities have been dealt with, it is the responsibility of the estate administrator to prepare estate accounts. The estate can be distributed once the administrator is satisfied that all liabilities have been identified and cleared and all beneficiaries located. In some cases, advertisements may need to be placed in the press to ensure that this is dealt with correctly. 

Professional representation

The role of estate administrator can be complex. It also takes a substantial amount of time and an administrator will be held personally liable for mistakes they make that cost the estate money. For these reasons, probate solicitors are usually used to deal with estate administration. 

Our probate team can deal promptly and efficiently with an estate administration to ensure that matters are concluded as soon as possible. We offer an end-to-end service, from applying for a Grant of Letters of Administration to distributing the estate to the beneficiaries and obtaining receipts. 

If you would like to discuss our services, please feel free to contact us. 

Contact our East Yorkshire and York area Power of Attorney and probate solicitors