Get in Touch

What is probate? Our no nonsense guide to probate in the UK

July 15, 2020

Losing someone close to you is never easy, and on top of dealing with your grief you may become responsible for managing their property, money and other possessions (assets). 

All name/s the deceased has chosen to be an executor of the will, responsible for their assets, will be documented in their will. 

The process of organising and distributing any assets in-line with your legal duties is known as probate.

First things first, what does it mean?

Probate is a legal document that will give the executors of the will the relevant authority to deal with the assets and carry out the wishes of the loved one who has sadly passed. 

If you are the executor of the will, this could also be more than one person, you will be responsible for handling the probate process. 

Essentially, before you sell the property you will need probate. And, if you need to divide any assets it’s likely you will need to apply for probate. Once you have received the grant of probate, you will have the legal authority to take the actions specified in the person’s will. 

Executors could then, for example; close bank accounts, sell the deceased property, sell shares, transfer the property to the beneficiaries, or close investment accounts.

So, how do you go about doing this? Don’t worry, we’re here to help you understand this further, and will outline the steps to take as we move through the guide. 

It’s also worth noting that if you live in Scotland probate is recognised as ‘confirmation’. 

How probate works: the process

The process of Probate can vary from case to case, because every will and assets are different. It can also be made much easier with the help from a probate solicitor, such as ourselves, to assist any executor of the will with the probate process. 

Typically, the process can involve;

  1. Before you do anything you will need to ensure you have copies of the deceased’s death certificate, after registering their death. Regardless of whether you need probate or not, you will certainly need the death certificate to gain any access to manage their assets. 
  1. Once you have these it’s important to actually understand if the deceased has a will in place. If so, ensure the named executor/s of the will is the person who is carrying out the process moving forward. It is only the executor/s that should be involved with the process of probate. 
  1. You then need to understand the assets and estate that the deceased has left. You will need to communicate with all relevant businesses, financial institutions and government organisations. Depending on the complexity of the estate and whether the organisations stipulate probate, informs whether you’ll need to proceed with the grant of probate, the next steps…
  1. Next, you’ll need to apply for a grant of probate. This document allows the executor of the will to carry out the requests left in the will, owning and managing the assets accordingly. This is where expert help is most often required. The application process can be a complicated task so a solicitor can become invaluable at this stage
  1. The Inheritance Tax Return (IHT) is also required at this stage, so an understanding or valuation of the asset is important here. Again, due to the nature of this task a legal representative can offer advice and support to ensure your IHT is compliant whilst also maximising the outcome wherever possible.
  1. Once you have received the grant of probate you should then begin issuing a copy to all relevant parties, allowing you full access to the assets. Before proceeding any further you should ensure any outstanding debts are fully paid off
  1. With any debts paid and full control of the assets, you should now have full ownership and permissions to manage and share any assets according to the instructions left in the will

Where a will is not in place the Intestacy Rules will provide the guidance on what is required. 

When is probate required?

In some instances probate isn’t required, however this is extremely varied across circumstances and asset holders requirements. 

Meaning, in general there’s no clear guidelines as to when probate is required, some organisations will release funds or assets without probate depending upon the criteria.

Here’s a few examples to explain according to the different scenarios;

If there is a house in the deceased name then probate is required to give the executors of the will the authority to sign the contract and sell the property to the new buyers.

If there is a bank account with a small amount then probate may not be required even though there is a will in place.

If the assets include joint bank accounts with the spouse – and then one individual account the bank/building society may insist on probate before they will close the account.

If there’s an investment bond within the assets again they may insist on probate being obtained before the bond can be sold or transferred.

A home that is jointly owned can become tricky. Essentially, there are two different ways of jointly owning a home. These are beneficial joint tenancies and tenancies in common.

If the partners were beneficial joint tenants at the time of the death, the surviving partner will automatically inherit the other partner’s share of the property. There is no need for probate or letters of administration unless there are other assets that are not jointly owned

However, if the partners are tenants in common, the surviving partner does not automatically inherit the other person’s share. Probate, or letters of administration, will be needed so the personal representative can pass it to whoever will inherit the share of the property, according to the will or the rules of intestacy. 

Ultimately, banks and other relevant organisations will set out their own rules as to when probate is or isn’t required. Depending on the circumstances, it may be worth checking if a grant of probate is required before proceeding with your application.

What is a grant of probate?

We’ve already mentioned a grant of probate, but a simple definition of it is the legal document which grants the executor of a will permission to manage and distribute the assets left by the deceased.

What is Inheritance Tax Return?

Where tax is payable, the Inheritance Tax (IHT) return is completed and is lodged with HMRC. If no IHT is payable, the tax return IHT205 is sent directly to the chosen probate registry with the statement of truth. When it has been signed by the executors or the administrators (collectively known as Personal Representatives or ‘PRs’). 

The statement of truth is the document by which the PR’s formally apply for the grant of representation and promise to collect in all the deceased’s assets, pay any debts and distribute the estate in accordance with the terms of the will. 

How long does probate take?

To gain the grant of probate it can take anywhere between 2-12 weeks. This just depends on how quickly the Probate Office can review and process applications. 

The whole probate process from a solicitor taking instructions to assisting with finalising a case can take anything between 12 weeks and 2 years depending on the value, size and complexity of the estate and assets.

How much does probate cost?

Unfortunately there’s no set cost to probate due to its varying nature. Each will and assets owned are different from case to case. 

What we can tell you is that the probate court fees are £155, plus £1.50 for each copy. 

Other costs, including solicitors fee can also vary between businesses, however we take pride in ensuring that all costs, advice and support are communicated and acted upon in a timely manner to ensure a swift and cost effective approach to probate. 

We understand probate takes place during a sensitive time and can cause significant headache and strain which can quickly become an unwelcome task. 

Our experienced and sympathetic probate solicitors can assist you with the entire probate process, from the registration of the death, preparation of inheritance tax accounts, wills and trusts.

Who can apply for probate?

The executor/s that are named in the will are responsible for applying for probate.

Probate without a will, is this possible?

If a person has died and not left a will, but there are assets such as bank accounts and a house to be dealt with, a letter of administration will be needed. 

It is usually a spouse or civil partner that will apply for a letter of administration which will grant them the legal authority to manage the estate and assets.

What is the difference between probate and letters of administration?

If the deceased has a will the named executors would often require a grant of probate in order to manage the assets. 

However, if the deceased does not have a will, a grant of letters of administration is applied for and the person responsible would be an administrator rather than an executor. 

Can a will be changed after death?

You can change a valid will, but you can only make changes to the share of the inheritance that it has given you. 

For example, you could:

  • Give specific assets to different people instead
  • Give away your whole entitlement
  • Reduce inheritance tax
  • Use your inheritance to set up a trust for your family

To make any of these changes you will need to apply for a document called a deed of variation, or a deed of family arrangement. In order to do this there are certain rules and it can be a little complicated, so involving a solicitor would be advisable.

What rights does a beneficiary have?

A beneficiary is someone who will receive something from the deceased’s will. 

The executors of a will have a legal duty of care to the beneficiaries to ensure they deal with the estate properly. They are also responsible for obtaining the best price for the property if there is a sale involved. 

The executors could be held responsible should they be seen to be delaying dealing with the estate and as a result the assets drop in value. Beneficiaries can take legal action against an executor if they breach these rights or if the executor is otherwise mismanaging the estate.

Can a will be challenged? 

Yes, you can challenge or contest a will, if you strongly believe it doesn’t accurately represent the deceased intentions of their assets, or if you believe it is invalid for other reasons.

You can contest a will if:

  • You believe the will has been forged
  • The deceased had reduced mental capacity when writing their will
  • The deceased was under undue influence when writing their will
  • You were financially dependent on the deceased and the will doesn’t provide for you (as required by the Inheritance Act)

Our dispute resolution team of solicitors can support any legal disputes of this nature. Find out more here. 

What is a personal representative?

A personal representative is simply another term for the executor, where there is a will, or administrator, where there is not a will. 

Why do I need a Solicitor to obtain Probate?

Honestly, you don’t. Some people do obtain probate without a solicitor, however with a high, legal, level of responsibility a solicitor is advisable. 

Remember, if anything does begin to be disputed the beneficiaries can take legal action against the executor or administrator. 

Who pays the Solicitor for Probate?

Any payments required for solicitors can be made from the assets, the executor is not personally liable.