In England and Wales, probate is the legal and financial process of handling a person’s estate after they pass away. In this detailed guide, our legal experts explain what you need to know about probate, and what to do if you need to apply.
In England and Wales, probate is defined as the legal process of handling someone’s estate and finances after they have passed away.
The process of probate includes proving that the deceased’s will is valid (where one exists) and confirming who has the authority to manage their estate according to the terms contained within the will.
It does not matter if the will names an executor; in many cases, probate will still be required.
What is a grant of probate?
A grant of probate is a legal document, which gives the executor the authority to administer the estate of the deceased person. It provides access to bank accounts, as well as the authority to sell assets and settle any debts that are owed. You may have to apply for a grant of probate if you are the named executor in someone's will.
Only once probate has been granted can the next of kin or executor of the will begin to administer the deceased’s estate. Where there is a valid will in place, this should be done according to terms set out in the will. If not, the rules of intestacy determine how the estate should be distributed.
When is probate required?
It is quite common for a grant of probate to be required when a loved one dies, though the exact reasoning can vary from person to person. As a general rule, probate would be required where the deceased solely owns property or other high value assets held by a financial institution.
It’s important to note that banks and other financial institutions set their own limits on when probate would be required, so there is no fixed value at which you would need to apply for probate. That said, where assets do not include property and are valued at less than £5,000, probate wouldn’t typically be needed.
However, a financial institution may still ask for a Statutory Declaration to be completed before any money is released, to ensure assets and money are released to the correct person.
How does probate work?
As every will and estate is unique, the probate process can look very different for each person, varying depending upon what is included within the estate and the instructions left within the will (where a will is in place). It can involve a lot of complex legal and financial processes, particularly where the estate has a high value or includes many assets.
If you’re the executor of the will, however, there is a general process to follow.
Step One: Identifying assets and liabilities
Identify all the deceased’s assets (including property, financial assets, and personal possessions) and liabilities (any debts such as loans or utility bills). This can then be used to determine the value of the estate.
You should also identify who is entitled to inherit what from the estate (the beneficiaries), whether by the terms of the will or by the rules of intestacy where there is no will. Identification documents will be needed for each beneficiary.
Step Two: Settling tax matters
You will then need to determine if any tax is due on the estate. If applicable, you should ensure any Inheritance Tax owed is paid to HM Revenue and Customs (HMRC). This is usually due where the value of the estate is more than £325,000.
Step Three: Gaining a grant of probate
Determine whether you need to apply for grant of probate. This will usually be decided based upon the value of the deceased’s estate. Where it is necessary, you will need to apply to the Probate Registry for a grant of probate, which will give you the legal authority to administer your loved one’s estate.
Step Four: Settling the estate’s accounts
Repay any debts or other liabilities. This may involve liquidating (selling) assets from the estate where necessary or instructed. The remaining balance will be what is left for distribution to the beneficiaries.
Step Five: Distributing assets to the beneficiaries
Providing there are no challenges to the will or any further complications, you will then be able to distribute assets and finances to beneficiaries in line with the terms of the will, or the rules of intestacy where a will in not in place.
How long does probate take?
The length of time that the probate process can take will vary significantly from case to case, as it will largely depend upon the circumstances of the deceased’s estate and will. It can take anywhere from a few months to a couple of years, particularly if there are challenges to the will or the distribution of the estate.
Very pleased with the service I received from Slater and Gordon. All actions required were carried out in a sympathetic and efficient manner. Clarification of requirements were indicated in a clear and precise detail with good communication.
Mr S, Lancashire (wills, trusts & probate case)
My lawyer was very helpful at all stages of the process. She explained things clearly and was very flexible and helpful in dealing with my challenging personal circumstances. I would highly recommend.
Ms G, Lancashire (wills, trusts & probate case)
I am thrilled with how fast my Grant of Probate was dealt with and how lovely everyone was. I would highly recommend their services.
Mrs E, Manchester (wills, trusts & probate case)
The cost of probate can vary depending upon several influencing factors. These include: the value of the estate, the complexity of the estate, property ownership, tax implications, where a will is missing or deemed invalid, and where challenges or disputes arise.
Our specialist probate solicitors offer a range of different legal services – including fixed fee and hourly rate options – that can be tailored to your circumstances. All costs involved in your matter will be made clear from the outset, and any additional costs likely to arise as your matter progresses will be flagged to you.
To learn more about how much probate costs with Slater and Gordon, visit our Probate Fees page.
Who can apply for probate?
Only the person named as the executor of the will can apply for probate to administer their estate. If a will has not been created, then the person responsible for the estate will be determined by the rules of intestacy.
If you’ve been named as an executor of a will, but do not wish to administer the estate yourself, it is possible to get support from a solicitor. Our probate solicitors have supported hundreds of clients to effectively administer their loved one’s estates.
Do I have to act as an executor if I have been named in the will?
No. If you’ve been named as an executor in someone’s will – even if you agreed to the role at the time the will was drafted – you do not have to take on this responsibility if you do not wish to.
Instead, you can permanently renounce your legal claim to administer the deceased’s estate via a Deed of Renunciation, or have ‘power reserved’, allowing you to step away from the duties of an executor while reserving the power to act at a later stage if needed.
An executor of a will has a series of important and often time-consuming responsibilities. This can seem overwhelming, particularly while you are dealing with the loss of a loved one, and it is not uncommon for people to struggle to effectively complete the tasks required throughout probate.
While you may feel an obligation to continue to act, it is crucial that you only do so if you feel you are able to administer the deceased’s estate correctly and effectively, as executors can be held personally and financially liable for any errors made.
Do I need a solicitor for probate?
While it isn’t necessary to instruct a solicitor to apply for probate, the processes involved can be very complex and technical, particularly where the deceased has a large or highly valued estate. You may also not want to be responsible for directly administering their estate, and the support of a probate solicitor can be incredibly valuable.
To find out more about how we can help you ensure your loved one’s estate is handled according to their wishes, speak to our legal experts today on 0330 041 5869 or get in touch online.
How our probate solicitors can help
Depending on the will, the estate and the beneficiaries, carrying out your duties as an executor or administrator can be complicated and time consuming. While you are allowed to pay yourself any expenses back from the estate, you are not entitled to a reimbursement of your time. However, you can use legal representation to assist you. Our professional fees can be paid from the estate.
Our probate solicitors can assist you with tasks such as:
Applying for a Grant of Probate or a Grant of Letters of Administration.
Identifying and collecting in assets of the estate and identifying and paying any outstanding debts of the estate
Considering and settling the tax position of the estate
Communicating with the beneficiaries and distributing according to the will.
If there is no will, distributing the estate according to the rules of intestacy.
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How long will it take to receive an inheritance after probate is granted?
This will largely depend upon how complex the estate and the terms of the will are. Typically, any inheritance is received between six and twelve months after the grant of probate is received, though this can be longer for very complex estates or if challenges or disputes are raised.
How do I calculate the value of the estate?
Calculating the value of the deceased’s estate involves determining the total value of all assets owned – including property, financial assets such as investments and shares, and personal possessions. You must then subtract the value of any debts or liabilities, such as loans or mortgages.
What is left is known as the net value of the estate, and this will be used for probate and Inheritance Tax calculations.
How do I know if I need to pay Inheritance Tax from the estate?
Inheritance Tax is only due under certain conditions:
If the value of your loved one’s estate is above the £325,000 threshold
The deceased has not left anything over the £325,000 threshold to their spouse, civil partner, charity or community amateur sports club
Can I apply for probate if I live overseas?
Yes, you can apply for probate if you live overseas if the deceased had assets located in England or Wales, or they were domiciled here. Living abroad will not stop you acting as the executor of the estate, though the process may take a little longer than if you were in the UK.
Is probate needed if there is a will?
Whether probate is needed is not determined by the presence of a will; a will could state a named executor, and a grant of probate may still be required. This is because probate is determined by the financial situation of the deceased and where assets are held.
Where the deceased solely owned property, or other high value assets, it is likely you will need to apply for probate to manage their estate.
Do I need to apply for probate if there is no will?
If someone dies without a will (intestate), an application will still need to be made to gain the legal authority to manage their estate. However, this process – known as intestacy – is slightly different to that of probate.
The rules of intestacy will determine who should apply for the legal right to administer the estate – this is known as a grant of letters of administration. They will then need to manage and distribute according to the rules of intestacy.
To learn more about the rules of intestacy and what to do if your loved one has died without a will, click here. Alternatively, you can speak to our probate solicitors on 0330 041 5869 or get in touch online.
Very pleased with the service I received from Slater and Gordon. All actions required were carried out in a sympathetic and efficient manner. Clarification of requirements were indicated in a clear and precise detail with good communication. Mr S, Lancashire (wills, trusts & probate case)
My lawyer was very helpful at all stages of the process. She explained things clearly and was very flexible and helpful in dealing with my challenging personal circumstances. I would highly recommend. Ms G, Lancashire (wills, trusts & probate case)
I am thrilled with how fast my Grant of Probate was dealt with and how lovely everyone was. I would highly recommend their services. Mrs E, Manchester (wills, trusts & probate case)