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10 Wills and Probate

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1. Introduction

2. Why should I make a will?

3. What makes a will valid?

4. Who can be a witness?

5. What does an executor or administrator do?

6. What is probate?

7. Will I have to pay inheritance tax?

8. Who takes charge if there is no will?

If you, as next of kin (or someone else with similar powers), believe that someone who has died has left a will, but no one can find it, you can take steps to find out if they made one. These can be:

  • searching the belongings of the person who has died for any evidence that they made a will (for example, a letter from a solicitor);
  • phoning or writing to solicitors and banks that the person might have used;
  • applying to the Principal Probate Registry to see if the person who died left their will there; and
  • placing advertisements in newspapers and legal journals.

If there is no will, the person's estate will be shared out under the 'rules of intestacy'. These rules set out:

  • who deals with the estate; and
  • who benefits from it.

The person who will deal with (administer) the estate is the closest living relative to the dead person, chosen in this order:

1. The husband, wife or registered civil partner of the person who has died (but not their unmarried or unregistered partners).

2. Their children (aged over 18) or their children's descendants (for example, grandchildren, if they are over 18).

3. The dead person's parents.

4. The dead person's brothers or sisters with the same mother and father, or descendants of the brothers or sisters.

5. Their half-brothers or half-sisters (who had either the same mother or the same father) or their descendants.

6. Their grandparents.

7. Their uncles and aunts 'of the whole blood' (this means brothers and sisters of their parents, as long as they had the same mother and father themselves) or their descendants.

8. Their uncles and aunts 'of the half blood' (this means brothers and sisters of their parents who had only the same mother or father) or their descendants.

9. The Crown (the state) if there are no relatives.

If several people have an equal right to deal with the estate (for example, brothers and sisters), letters of administration will normally be given to the first of these people who applies for it.

However, there can be a problem when, for example, the dead person has several brothers or sisters who all want to be in charge of the funeral or administration. If they cannot agree about this themselves, they must apply to the Probate Court, which will decide who will take responsibility. This process is complicated and you would probably need help from a solicitor.

Remember, too, that legal disputes cost a lot of money and take time to resolve. The costs will probably be taken out of the estate, if the court agrees to this. But otherwise, you risk being left with a large bill.

9. Who gets the estate if there is no will?

10. What can I do if I think there is something wrong with the will?

11. What can I do if I think the will is unfair?

12. What if there isn´t enough money to pay for the funeral?

13. What if there isn´t enough money to pay the person´s debts?

14. Terms used in wills and probate matters

15. Further help

16. About this leaflet

The leaflets in this series give you an outline of your legal rights. They are not a complete guide to the law, nor do they explain how the law will apply to you or to any specific situation. The leaflets are regularly updated, but the law may have changed since this was printed, so information in it may be incorrect or out of date.

If you have a problem, you will need to get more information or personal advice to work out the best way to solve it. See 'Further help' for sources of information and advice.

This leaflet is published by the Gurkha Free Legal Advice (LSC).

Leaflet version: January 2009

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