Acting as Executor Without Probate

Written by Tanya Waterworth, Digital Content Writer

About Our Legal Expert: This content is produced with oversight by Michael Jefferies, Managing Director who has over 30 years’ legal experience.

What It Means and What You Can Do (England and Wales)

After someone dies, it is common for a relative to step in and “sort things out”, but they have to be careful and not cross the line to acting as executor without probate. They may collect the keys, cancel utilities, contact banks, and start dealing with paperwork.

But sometimes the situation goes further. A family member starts moving money, selling property, distributing belongings, or telling others they are “the executor” – even though probate has not been granted.

If you are dealing with this, you may be searching for answers like:

• Is it legal to act as executor without probate?
• Can someone access a deceased person’s bank account after death?
• What happens if an executor takes money before probate?
• How do I stop someone dealing with the estate?

In England and Wales, acting as executor without probate can create serious legal risk. It can also lead to personal liability under a concept called executor de son tort, which often features in contentious probate claims.

Can you act as executor without probate?

Even if someone is named as executor in a will, they do not have full authority to deal with estate assets until the Probate Registry issues a Grant of Probate. Generally, you should not deal with estate assets beyond basic safeguarding until a grant is obtained.

If there is no will (or no executor able to act), the person dealing with the estate normally needs Letters of Administration.

Until that grant is issued, a person should not:

• withdraw money from the deceased’s bank accounts
• sell the deceased’s home
• sell the car
• distribute money to beneficiaries
• transfer shares or investments
• close accounts and keep the proceeds

There are limited exceptions where immediate action is necessary (for example, securing the property), but most financial dealings should wait.

 

Why acting as executor without probate causes disputes

When someone starts acting as executor without probate, it often triggers conflict among family because:

• nobody knows what has been taken
• assets can disappear quickly
• family members feel excluded
• there is no proper record of decisions
• the estate may not be protected

This is a common starting point for contentious probate and will disputes, especially where relationships were already strained or where there is suspicion about money.

 

What is “intermeddling” in probate law?

In legal terms, acting as executor without probate is often described as intermeddling, which means dealing with estate assets as if you have authority, when you do not.

It is not limited to one action. The court looks at whether the person has assumed the role of estate administrator and started handling estate property.

Intermeddling is important because it can lead to a person being treated as an executor de son tort.

 

What is executor de son tort?

Executor de son tort is an old legal term still used in England and Wales. It means:

“executor of their own wrong”.

If someone intermeddles with the estate, or in other words, acts like executor without probate, the law may treat them as an executor for the purpose of liability.

They do not gain the rights of a real executor. They gain the responsibilities.

This concept exists to stop people from dealing with estate assets and then later saying:

“I wasn’t the executor, so I can’t be held accountable.”

 

Common examples of acting as executor without probate

People often think they are allowed to do certain things “as next of kin” or because they were close to the deceased. In England and Wales, that is commonly misunderstood.

The following are common examples of acting as executor without probate:

1. Taking money from a deceased person’s bank account

This might include:

• withdrawing cash
• transferring money to another account
• using the deceased’s debit card
• moving funds “for safekeeping”

2. Selling assets before probate

For example:

• selling the deceased’s car
• selling jewellery or watches
• selling furniture
• selling property privately

3. Removing valuables from the home

This is one of the most common flashpoints in probate disputes.

Items often involved include:

• jewellery
• cash
• sentimental heirlooms
• artwork
• documents and deeds

4. Paying beneficiaries early

Paying one sibling “their share” or giving away items can create major problems, particularly if the will is later challenged.

5. Paying debts from estate funds

Paying bills can be legitimate, but using estate money without authority may be risky, especially if the payments are selective or poorly recorded.

However, paying reasonable funeral expenses and some urgent liabilities is often treated as part of proper administration and not necessarily wrongful, especially where the person later becomes the personal representative.

 

What is allowed before probate?

It is important to highlight that not every action after death is wrong.

There are sensible steps that people often need to take before probate, such as:

• arranging the funeral
• securing the property
• notifying banks and institutions of the death
• locating the will
• making a basic inventory for safeguarding
• ensuring pets and dependants are cared for

These are usually seen as protective, not administrative.

The legal risk increases when someone starts moving money, selling assets, or distributing property.

 

What happens if someone acts as executor without probate?

The consequences can be serious. If the person is treated as an executor de son tort, they may be required to:

• return assets to the estate
• repay money they took
• explain what happened to missing funds
• compensate the estate for losses
• pay interest
• pay legal costs (in some cases)

This is particularly relevant where the person cannot properly account for what they did.

In practice, acting as executor without probate can turn a family disagreement into a formal contentious probate claim.

 

Can you stop someone dealing with the estate?

Often, it is possible but you need to act quickly. Therefore, if you suspect someone is acting as executor without probate, common steps include:

• gathering evidence (bank texts, messages, photos, receipts)
• checking whether a probate application has been made
• contacting the bank to ensure accounts remain frozen
• asking the person in writing to stop dealing with assets
• speaking to a contentious probate solicitor

However, where there is a risk of assets being sold or removed, urgent legal action may be necessary.

 

What can the court do in a contentious probate claim?

If a dispute escalates, the court has strong powers. Depending on the facts, it can order:

1. An account of what they did

The person may have to provide a full explanation of:

• what they received
• what they spent
• what they transferred
• what they sold
• what remains

2. Repayment to the estate

If money has been taken or assets sold, the court can order repayment.

3. Return of items

If the person removed property, they may be ordered to return it or pay its value.

4. Urgent protective orders

In serious cases, the estate may seek urgent court protection to prevent further loss.

 

What if they claim they were “just helping”?

This is extremely common in these cases. But, the court will not decide based on what the person says their intentions were. It will look at what they actually did.

Key questions may include:

• Did they benefit personally?
• Did they keep records and receipts?
• Did they act transparently?
• Did they distribute assets?
• Did they use estate money for themselves?

There is a big difference between locking the house and emptying the bank account.

 

Why this matters if the will is being challenged

Acting as executor without probate is even more risky if:

• the will is disputed
• there are allegations of undue influence
• there are concerns about mental capacity
• there is an argument that the will is invalid

If the will later turns out not to be valid, the person who acted may have no lawful basis for anything they did.

This is why contentious probate solicitors often advise families not to take steps beyond basic safeguarding until the legal position is clear.

 

Key takeaway: acting as executor without probate can create personal liability

If someone starts acting as executor without probate in England and Wales, they may be personally liable for what they do – even if they were never officially appointed.

This is often framed legally as intermeddling and may lead to them being treated as an executor de son tort.

If you suspect someone is dealing with estate assets too early, it is worth taking advice quickly. The sooner you act, the easier it usually is to protect the estate and prevent money or property from disappearing.

 

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