What is probate and how does it work?

What is probate?

Probate is the word used to describe the process of administering someone's estate after they've died. This includes things like collecting their money, shares, property and possessions, and working out who'll inherit what.

The next of kin or executor of a will may have to apply for probate to administer the will. After you apply for probate, it will normally be given through a grant of probate or letters of administration, depending on whether the deceased left a will.

What is a grant of probate?

A grant of probate is a legal document that the executor of the will should apply for. It authorises them to administer the deceased person's estate and carry out the wishes in their will.

What is the process for probate?

The process for probate can be complicated and time consuming. You can appoint a specialist to deal with probate for you, but that can be expensive.

The probate process is usually made up of the following steps:

1. Register the death

   You will need to register the death of the person who has died. You'll need a copy of the death certificate to deal with their assets.

   You can use Gov.uk(opens in a new tab) to find the appropriate register office to register the death. You can also tell the Government about the death using the Tell Us Once service(www.gov.uk opens in a new tab).

2. Dealing with the estate

   Find out what the deceased's estate includes. For example, this could include property and investments. You'll also need to find out what, if any, debts they had.

   It's important to find out if the person who died left a will. It could contain instructions, funeral wishes or details of a funeral plan.

   If there is a will, it should name the 'executor' of the estate. This will be the person who administers probate. If the person didn't leave a will, they died intestate and the process is a little different.

3. Apply for a grant of probate and complete an inheritance tax return

   If you are the executor of the will, you'll need to apply for the grant of probate by applying to the probate registry.(www.gov.uk opens in a new tab)

   You'll need to complete an inheritance tax form at the same time. You'll need to know the value of the estate to make sure you complete the right form. You should also account for any income tax or capital gains tax.

4. Tell the necessary people and pay off any debts

   Place a notice in the Gazette(www.thegazette.co.uk opens in a new tab) so that anyone owed money by the deceased has chance to claim it. This protects the executor from responsibility for any debts.

   Make sure payments due such as taxes, bills and any debts of the deceased are paid.

5. Recover any payments due

   If the deceased had life insurance, call the provider to inform them of the death and start the claims process.

6. Value and collect their assets

   Once you have paid off any debts and any taxes, you will need to work out the value of the estate. This includes all assets such as property, investments, the contents of the home, personal items and other possessions.

7. Divide the assets

   Share the assets according to the wishes set out in the will. This is the last part of the process and should be fairly straight forward.

 

When is probate required?

Probate is generally needed when someone dies and their estate:

• is worth more than £5,000
• includes assets other than money (such as property or shares)

Is probate needed if there is a will?

If the deceased's will includes property, plus stocks and shares, you'll probably need probate.

But if they're only leaving personal possessions and savings of under £5,000, you might not need probate. That’s because some savings providers don’t require evidence of a grant of probate before releasing sums of this value.

If they have a jointly-owned property in their estate, it will automatically go to the other owner without the need for probate.

Who can apply for probate?

It's usually the executor (person) named in a will that can get the grant of probate.

In some cases no-one is named as executor in the will, or the person named won't or can't act. Then, anyone over 18 who has been left something in the will can apply for the grant of probate.

It's worth noting that there can be more than one executor in a will.

How long does probate take?

That depends on how complex the deceased person's estate is. Getting a grant of probate can take up to sixteen weeks from when you submit the application and send in your original documents. Or even longer if you need to provide additional information.

If there was inheritance tax to pay, you will need to wait for a letter from HMRC before applying for probate. This can take up to 20 days after submitting your forms to HMRC.

After that, it's up to the executor to divide the assets according to the wishes in the will.

How much does probate cost?

Where the value of the estate is over £5,000 the Government charges a fee of £273 for probate applications(www.gov.uk opens in a new tab). This fee is the same whether you are tackling the process yourself or applying through a solicitor. There is no Government fee if the value of the estate is under £5,000.

Using a probate advisor, such as a solicitor, will cost money and prices will vary.

A probate advisor may charge you a fixed fee, an hourly rate, or a fee based on a percentage of the estate's value. This tends to range between 1% and 5% plus VAT (according to MoneyHelper(opens in a new tab)).

 

How to apply for probate

You can apply for probate if you're an executor. If there's no will you can apply for letters of administration if you meet the criteria.

Here's some guidance on how to apply for probate:

If you're the executor of the will

To apply, you'll need an original copy of the will and an estimate of the estate's value.

The government website has a service where you can apply for probate online(www.gov.uk opens in a new tab).

If you'd rather, you can fill in this form to apply by post(www.gov.uk opens in a new tab).

If the person didn't leave a will

That's where intestacy laws come in to play. The law decides how the estate will be distributed(www.gov.uk opens in a new tab)

You can still apply to administer the estate if you're the deceased's husband or wife, civil partner, or child (if over 18). Find out more about who can apply(www.gov.uk opens in a new tab).

In this case, you'd apply for a grant of letters of administration.

You cannot apply if you're the partner of the deceased but were not their husband, wife, or civil partner when they died.

Find out more about the laws of intestacy, and how to apply for probate in this situation in our article on dying without a will.

Other legal considerations

A grant of probate gives you the legal right to administer the deceased's estate.

If you don't want to or can't act as executor, you can refuse to act. But only if you have not already carried out tasks that the executor would normally do. For example, taking steps to collect the assets.

If you do act you can also appoint someone else, such as a solicitor, to carry out work on your behalf. This could include preparing and submitting the application for the grant of probate and preparing the estate account.

Up to four people can be appointed as executors, but only one probate application can be submitted. So, decide among yourselves who should apply.

There may be other legal issues depending on how complex the estate is. If you're concerned about this, you might want to hire a specialist to help.

Contesting a will

You might be able to contest a will in certain circumstances, including if:

• You don't think the deceased was fully aware of the contents of the will when they made it.
• The will has been forged or false information was provided to the deceased to influence how they made it.
• The deceased no longer had mental capacity when they were writing their will.
• The deceased was being pressured or threatened, while they were writing their will.
• The will is not valid due to failing to meet formal requirements. For example because it has not been signed by the person making the will or the signature was not witnessed by 2 independent people when the will was signed.
• The will is not valid because the deceased made a more recent will.

If you want to contest a will, you'll need to make a court claim to challenge a decision on probate.

It is also possible to apply to the court to change how the estate was distributed. You can do this if a spouse, former spouse, child, child of the family or dependant of that person has not had reasonable financial provision.

You should consider seeking advice from a specialist advisor if you wish to challenge a will or make a claim for financial provision from the estate. The Law Society(solicitors.lawsociety.org.uk opens in a new tab) can provide you with details of a specialist advisor.

Useful links

Probate can seem like a daunting and complex part of dealing with the death of someone close to you.

Fortunately, the government website has more information on what you need to do if you're applying for probate(www.gov.uk opens in a new tab).

If in doubt about whether or not you're the executor or if the deceased even had a will, head to find a will(probatesearch.service.gov.uk opens in a new tab) on the government website.

Continue reading

For more help with end of life arrangements, explore our other articles including:

• What to do when someone dies
• How to plan a funeral
• How to get free bereavement support