Is probate required?

[Gengulphus]

And from the creditor's point of view, the process of collecting the debt if the executor fails to pay up, and the amount of work it involves, is the same whether or not the executor is obtaining probate.

From the point of view of a creditor's solicitor that is certainly not the case.

If a grant has been taken out it's very simple - you just sue the executor / administrator. But if no grant has been taken out there's nobody to sue.

Surely an executor's authority derives from the will, not from probate? And once they have "intermeddled" with the estate, they cannot renounce the role?

In the situations I am comparing, there is an executor named by the will and they have distributed the estate, and the only difference is whether or not they've obtained probate. You seem to instead be comparing that situation (with the executor having obtained probate) with a situation where a person or persons unknown have distributed the estate without obtaining probate.

Gengulphus

[Clitheroekid]

Surely an executor's authority derives from the will, not from probate? And once they have "intermeddled" with the estate, they cannot renounce the role?

In the situations I am comparing, there is an executor named by the will and they have distributed the estate, and the only difference is whether or not they've obtained probate. You seem to instead be comparing that situation (with the executor having obtained probate) with a situation where a person or persons unknown have distributed the estate without obtaining probate.

It's quite correct that the authority derives from the Will, and that an executor who intermeddles can't then renounce probate. But if no grant of probate is ever taken out how is a creditor supposed to know whether a Will even exists, let alone the identity of the executor?

The whole point of the grant of probate is that it's a public document, and any creditor can immediately identify who's responsible for dealing with the estate. This simply isn't possible if no grant is ever taken out (at least not without a lot of investigative work with no guarantee of success).

[Lootman]

In the situations I am comparing, there is an executor named by the will and they have distributed the estate, and the only difference is whether or not they've obtained probate. You seem to instead be comparing that situation (with the executor having obtained probate) with a situation where a person or persons unknown have distributed the estate without obtaining probate.

I cannot speak for CK but, for what it's worth, I was talking about the latter i.e. the estate was distributed by persons who did not start or obtain probate, but rather were able to handle everything without it, which is the situation that Paul was hoping for in the original question.

The person who did that distribution may coincidentally have been the executor named in the will. Or may simply have been a beneficiary/third party. If the latter, then the named executor hasn't intermeddled and therefore could not be held personally liable.

I think you're arguing that if it's the beneficiary who did the distribution then he/she is a de facto executor and therefore could be held personally liable. I do not know if that is true.

Either way, it's entirely possible that the assets could have been distributed without any action after death, such as via gifts, attorney action, joint tenancy or by simply taking physical custody of an asset of value. And then it would seem to me that the creditors might be without recourse, since they are effectively owed by an estate with nothing in it, with no responsible individual identified.

[melonfool]

I think you're arguing that if it's the beneficiary who did the distribution then he/she is a de facto executor and therefore could be held personally liable. I do not know if that is true.

Either way, it's entirely possible that the assets could have been distributed without any action after death, such as via gifts, attorney action, joint tenancy or by simply taking physical custody of an asset of value. And then it would seem to me that the creditors might be without recourse, since they are effectively owed by an estate with nothing in it, with no responsible individual identified.

Surely that's plain old fashioned theft (from the estate)?

I bet it happens all the time though.

Mel

[Lootman]

I think you're arguing that if it's the beneficiary who did the distribution then he/she is a de facto executor and therefore could be held personally liable. I do not know if that is true.

Either way, it's entirely possible that the assets could have been distributed without any action after death, such as via gifts, attorney action, joint tenancy or by simply taking physical custody of an asset of value. And then it would seem to me that the creditors might be without recourse, since they are effectively owed by an estate with nothing in it, with no responsible individual identified.

Surely that's plain old fashioned theft (from the estate)?

I bet it happens all the time though.

If it's intentional, then it would be theft. I think the situation we were envisaging is more a case of there being no motivation to go through the full probate process when the beneficiaries already have their inheritance, and so things fall between the cracks.

[Gengulphus]

I think you're arguing that if it's the beneficiary who did the distribution then he/she is a de facto executor ...

No, I'm not arguing that. But I would argue that if they are actually an executor named in the will, then they are personally liable as a consequence of being an actual executor (not just a de facto one), and if they're not, then they're liable as a general matter of civil law. I'm not 100% certain about the latter, but outside the context of wills, executors, etc, if I were to give something belonging to you away to a third party, in the mistaken belief that it was mine to give away, I believe you could sue me for the value of your loss. I wouldn't be guilty of theft or any other criminal offence because of the lack of intent, but civil liability doesn't require intent...

... and therefore could be held personally liable. I do not know if that is true.

Either way, it's entirely possible that the assets could have been distributed without any action after death, such as via gifts, attorney action, joint tenancy or by simply taking physical custody of an asset of value. And then it would seem to me that the creditors might be without recourse, since they are effectively owed by an estate with nothing in it, with no responsible individual identified.

I would call all of those things actions - but I imagine you mean provable-in-practice actions after death. Evidence will exist of many of them, but actually getting one's hands on that evidence may be difficult. E.g. someone acting under a Power of Attorney after death (or rather, purporting to act under one - no type of Power of Attorney provides legal authority for actions after death) will generally have given instructions to a bank or other financial institution, who will have evidence of those instructions - but getting them to release it is another question. Or someone taking the more legally-valid approach of getting a bank to release funds without probate from a not-too-big account will have signed a letter of indemnity, which will say who they are, but again getting the bank to release that information is another question.

Gengulphus

[meldrewreborn]

I've acted as executor 3 times now - its not that complicated and if it does get complicated then the executor can call in a solicitor for help on that issue. Which? have a guide on wills and probate and you can usually sign out a copy from your local library rather that buying it.

Some wills can be dealt with without probate if the organisations involved are willing to accept indemnities and the amounts are small.

But some organisations insist on probate even for small sums (co-op insurance for £169!) and some charge for the indemnity (typically share registrars (about£50 for each and every holding).

While probate costs circa £215 (plus 50p for each copy of the grant - best to get a few as it speeds collection of the dosh) it greatly simplifies the task of getting the money in and trumps the obstructive and mercenary organisation as you have a court order authorising you to collect the money and no further charges can by levied.
Notification of the death and the estate value to HMRC might still be necessary even if probate is not applied for (imagine the death of a spouse where everything is in joint names)

Wills for which probate has been granted become public documents and are accessible by members of the public for a small fee.