So, what is probate, when is it needed and how does the process work?
In this article, we explain the probate process in England and Wales, including what a Grant of Probate is, when probate is required, how to apply and what happens once probate has been granted.
If you are responsible for dealing with an estate and are unsure where to begin, our Probate and Estate Administration team can provide as much support as you need.
What is probate?
Probate is the legal process of obtaining authority to deal with the estate of someone who has died.
The word "probate" is also commonly used to describe the wider process of administering an estate. More specifically, it relates to obtaining the legal authority needed to deal with certain assets belonging to the person who has died.
This authority is confirmed through a document known as a grant of representation
Once the appropriate grant has been issued, the person dealing with the estate can usually begin collecting assets, closing accounts, selling or transferring property, paying outstanding debts and eventually distributing what remains to the beneficiaries.
Whether probate is needed will depend on the circumstances of the estate, including what the person owned, how those assets were held and whether they left a valid will.
The rules covered in this article apply to England and Wales. Different processes apply in Scotland and Northern Ireland.
Is probate the same as estate administration?
Probate and estate administration are closely connected, but they are not quite the same thing.
Probate generally refers to obtaining the legal authority needed to deal with an estate.
Estate administration is the wider process of dealing with everything the person owned and owed.
This can include:
- Locating their most recent valid will
- Identifying the executors and beneficiaries
- Establishing what property, money and possessions they owned
- Identifying outstanding debts
- Valuing the estate
- Dealing with Inheritance Tax where required
- Applying for probate
- Collecting or selling assets
- Paying debts and other liabilities
- Preparing estate accounts
- Distributing the remaining estate
Some estates are relatively straightforward, while others may involve property, investments, business interests, tax matters or disputes.
Our Probate and Estate Administration solicitors can provide support with a particular part of the process or deal with the administration of the entire estate on your behalf.
What is a Grant of Probate?
A Grant of Probate is the legal document that gives the executors named in a valid will the authority to administer the estate.
However, a Grant of Probate is not the only type of grant of representation.
Where somebody dies without leaving a valid will, an eligible person will normally apply for Letters of Administration instead.
There can also be situations where a valid will exists but the named executor cannot or does not apply. In these circumstances, a different form of grant may be required.
Whichever grant applies, its purpose is broadly the same: to confirm who has the legal authority to deal with the deceased person's estate.
Once issued, the grant can usually be provided to banks, investment providers and other organisations as evidence that the executor or administrator has authority to deal with the assets.
When is probate required?
Probate is commonly required when somebody dies owning significant assets in their sole name.
This can include:
- A house, flat or other property
- Money held in individual bank or building society accounts
- Shares or investments
- Certain business interests
- Other financial assets that cannot be released without formal authority
There is no single estate value at which probate will always be required.
Banks, investment providers and other organisations can have their own requirements before they will release assets. This means an executor or administrator may need to contact each organisation individually to find out whether they require a grant.
Probate is particularly likely to be required where property was owned solely by the person who died.
When might probate not be needed?
Not every estate will require probate.
For example, certain jointly owned assets may pass automatically to the surviving owner. Some banks or financial organisations may also agree to release smaller balances without requiring a grant.
Even where probate itself is not required, there can still be work involved in administering the estate. Debts, tax matters and the distribution of assets must still be dealt with correctly.
If you are unsure whether probate is required, our Probate and Estate Administration team can help you understand the next steps.
Do you need probate if there is a will?
You may still need probate even when the person left a valid will.
A will sets out who should administer the estate and who should inherit from it. However, having a will does not automatically give the executors access to every asset.
Banks, investment providers and other organisations may still require the executors to provide a Grant of Probate before they will release money or allow assets to be transferred.
Whether probate is required will therefore depend more on the value, type and ownership of the deceased person's assets than simply on whether a will exists.
A properly prepared will can nevertheless make estate administration much clearer by confirming who the executors are and how the person wants their estate distributed.
If you are considering making or updating a will, our Wills solicitors can help make sure your wishes are clearly recorded.
What happens if there is no will?
When somebody dies without leaving a valid will, they are said to have died intestate.
As there is no executor appointed by a will, an eligible person will normally need to apply for authority to administer the estate.
Rather than receiving a Grant of Probate, they would usually receive Letters of Administration.
The estate must then be distributed according to the statutory rules of intestacy rather than according to wishes set out in a will.
This can be particularly important where somebody has an unmarried partner, stepchildren or more complicated family circumstances.
Making a valid will is therefore an important way of setting out what you would like to happen to your estate. John Fowlers can assist with Wills as well as wider estate planning.
How does the probate process work?
Every estate is different, but the probate process will usually involve several key stages.
1. Find the will
The first step is to establish whether the person left a valid will.
Where one exists, it should identify the executors responsible for administering the estate and explain how the person wanted their assets distributed.
2. Identify and value the estate
The executor or administrator will need to establish what the person owned.
This can include property, savings, investments, valuable possessions and other financial assets.
Outstanding debts and liabilities will also need to be identified so that the overall value of the estate can be established.
3. Deal with Inheritance Tax
The person administering the estate will need to determine whether details of the estate must be reported to HMRC and whether any Inheritance Tax is due.
For estates where full details need to be reported to HMRC, the relevant Inheritance Tax process needs to be dealt with before probate can be applied for.
4. Apply for probate
Once the necessary information has been collected and the relevant tax requirements dealt with, an application can be made for the appropriate grant.
5. Collect the assets and pay debts
After the grant has been issued, the executor or administrator can usually begin collecting the assets belonging to the estate.
Valid debts, taxes, funeral expenses and other administration costs should be dealt with before the remaining estate is distributed.
6. Distribute the estate
Once the estate is ready to be distributed, the remaining assets can be transferred to the beneficiaries.
Where there is a valid will, distribution should follow its terms. Where there is no will, the rules of intestacy will determine who inherits.
How do you apply for probate?
Before applying for probate, the executor or administrator will normally need to establish the value of the estate and deal with any relevant Inheritance Tax requirements.
Probate can then be applied for online or by post. Individuals can make the application themselves or instruct a probate practitioner, such as a solicitor, to handle the application for them.
The exact information and documents required will depend on the circumstances, including whether the person who died left a valid will.
Applying for the grant is only one part of administering an estate. Executors and administrators are also responsible for making sure assets, liabilities, taxes and distributions are dealt with correctly.
How long does probate take?
There is an important difference between the time it takes to obtain probate and the time it takes to fully administer an estate.
GOV.UK currently advises that a Grant of Probate or Letters of Administration will usually be received within 12 weeks of submitting an application, although it can take longer if additional information is required.
The entire estate administration process will usually take longer than this.
Before an application can be submitted, assets may need to be identified and valued and tax matters dealt with. Once the grant has been issued, property may need to be sold, accounts closed, debts settled and money distributed to beneficiaries.
More complicated estates can therefore take considerably longer to complete.
How much does probate cost?
The probate application fee in England and Wales is currently £526 for estates valued at more than £5,000.
There is no probate application fee where the estate is worth £5,000 or less.
Additional copies of the probate document ordered at the same time as the application currently cost £2 each.
The application fee is not necessarily the only cost involved in probate or estate administration.
Depending on the estate, there may also be costs relating to valuations, property, professional advice and legal work.
John Fowlers offers different levels of support depending on the circumstances and complexity of the estate. You can view our Probate pricing for more information.
How can I find out if probate has been granted?
Probate records in England and Wales can be searched online to find out whether a grant has been issued.
This can be useful if you are a beneficiary, family member or another person with an interest in the estate and want to establish whether somebody has received authority to administer it.
Once a grant has been issued, probate records can also provide information about the estate and, where applicable, the will.
For more information about what you can search for and how the process works, read our article on how to find out if probate has been granted.
Do you need a solicitor for probate?
You do not have to use a solicitor to apply for probate. Individuals can make an application themselves either online or by post.
However, dealing with an estate involves more than completing the probate application.
An executor or administrator can be responsible for valuing assets, dealing with property, settling debts, addressing tax matters and making sure beneficiaries receive the correct inheritance.
Professional support can be particularly helpful where:
- The estate is large or complicated
- Inheritance Tax is payable
- There is no valid will
- The original will cannot be found
- Property or business interests are involved
- The estate includes overseas assets
- There are disagreements between family members or beneficiaries
- The executor or administrator is unsure of their responsibilities
You do not necessarily need a solicitor to deal with every part of the process. You may simply need assistance with obtaining the grant, or you may prefer a solicitor to handle the full estate administration on your behalf.
Need help with probate or estate administration?
Being responsible for somebody's estate can involve a significant amount of work at what is already a difficult time.
At John Fowlers Solicitors, our Probate and Estate Administration team provides sensitive, practical guidance throughout the process.
Whether you need help understanding if probate is required, support with the application itself or assistance administering the entire estate, our team can explain your options and help you understand what needs to happen next.
Contact John Fowlers Solicitors today to speak to a member of our team.