When a person dies, their estate (i.e. money, property and possessions) needs to be dealt with before it can be passed on to their beneficiaries. Depending on the assets owned, this may involve a legal process known as probate.
Not every estate requires this, however. Whether it’s needed will depend on any assets involved and how they were owned.
*This guide covers probate in England and Wales. Different rules apply in Scotland and Northern Ireland.
What Is Probate?
Probate is the legal process through which the authority to deal with certain assets in someone’s estate is formally recognised after they die.
Where a will is valid, executors may need to obtain a Grant of Probate, which provides evidence of their authority to deal with the estate. Without it, banks, investment providers and other organisations may not release certain assets.
What Is the Difference Between Probate and Estate Administration?
While probate and estate administration are closely connected, they work in different ways.
- Probate refers to the legal authority needed to deal with certain assets belonging to someone who has died.
- Estate administration covers the wider process of dealing with everything they’ve left behind. That can include valuing their assets, clearing outstanding debts, dealing with tax, selling property and eventually distributing the remaining estate.
So, obtaining probate doesn’t mean everything has been completed. Rather, it’s one stage of the wider estate administration process.
Who Is Responsible for Dealing With Probate?
This depends on whether the person left a valid will.
Where one is present, the executors hold responsibility for administering the estate. Their job is to make sure the deceased’s assets and liabilities are dealt with correctly and eventually distributed according to the will.
Should someone die without a valid will, the process works slightly differently. Instead of a Grant of Probate, you will usually need to apply for Letters of Administration in order to become the administrator of the estate.
When Is Probate Required?
Probate is often required where someone owned significant assets in their sole name.
For example, this might include:
- A house or other property
- Money held in bank accounts or savings accounts
- Investments and shares
- Certain business interests
- Other valuable assets
There isn’t a single financial threshold that determines whether probate is needed. Banks and other financial organisations can set their own requirements for when they will ask to see a grant before releasing money.
Property ownership can also make a difference. For example, if someone was the sole owner of a property, a grant will often be needed before it can be sold or transferred.
When Is Probate Not Required?
Probate isn’t always necessary for every estate.
For example, it may not be required where the estate is relatively small.
Certain jointly owned assets can also pass directly to the surviving owner. This can include a property owned as joint tenants, where the deceased’s interest can automatically pass on to the surviving owner.
However, every estate is different, so it’s important to establish exactly what the person owned and how those assets were held before deciding whether probate is necessary.
Do You Need Probate If There Is a Will?
Having a will doesn’t necessarily mean you can avoid probate.
A will sets out who should inherit the estate and usually appoints the executors responsible for dealing with it. Whether those executors need to obtain probate is a separate question.
It will largely depend on what the deceased owned, as well as the value of those assets or whether organisations such as banks require a Grant of Probate.
Likewise, an estate can require a legal grant even where there isn’t a will.
What Happens If Someone Dies Without a Will?
If someone dies without leaving a valid will, they are said to have died intestate.
This can make matters more complicated, particularly where there are several family members or more complex assets involved.
Instead of their estate being distributed according to their own instructions, the rules of intestacy determine who is entitled to inherit.
There won’t be a named executor, instead an eligible person will need to apply to become the administrator of the estate and, where necessary, obtain Letters of Administration.
How Does the Probate Process Work?
Although every estate is different, the probate process generally involves several key stages:
1. Locating the will
The first step is to establish whether the deceased left a valid will and, if so, who has been appointed as executor. In some cases, you may know a will exists without knowing where it’s stored.
This could involve checking personal records or contacting the solicitor who prepared it.
2. Identifying assets and debts
The executors will need to establish what the person owned and what they owed. This might involve contacting banks, investment providers, pension providers and mortgage companies.
3. Valuing the estate
Assets will then need to be valued. For example, a property may need a professional valuation, while banks can provide balances for accounts held by the deceased.
4. Dealing with Inheritance Tax
The value of the estate will help determine whether Inheritance Tax is due. Depending on the circumstances, information may need to be provided to HMRC and some tax may need to be paid before probate is granted.
5. Applying for probate
Once the necessary information has been gathered, the executors can apply for a Grant of Probate. If no will exists, the appropriate person will usually apply for Letters of Administration.
In England and Wales, you can make a probate application online or by post. If you wish to apply by post, form PA1P is used where there is a will, while PA1A is used where there isn’t one.
6. Collecting or selling assets
Once the appropriate grant has been issued, assets can be collected, transferred or sold as necessary.
7. Paying outstanding debts
Any outstanding debts and liabilities need to be settled from the estate before the remaining money is distributed.
8. Preparing estate accounts
The executors should keep a clear record showing the assets received, payments made and how the remaining estate will be divided.
9. Distributing the estate
Once everything has been dealt with, the remaining estate can be distributed to the beneficiaries according to the will or rules of intestacy.
What Can You Do Before Probate Is Granted?
You don’t necessarily have to wait for probate before starting to deal with the estate.
There are several things executors can begin doing straight away, such as locating the will, notifying organisations of the death, identifying assets and debts and arranging valuations.
If the deceased owned a property, you may also need to make sure it’s secure, appropriately insured and maintained while the estate is being dealt with.
However, some assets can’t always be sold, transferred or accessed until the appropriate grant has been issued.
What Happens to a House During Probate?
What happens to someone’s home will depend on how they owned it and what their will says.
If they were the sole owner, the property will usually form part of their estate. It may eventually be transferred to a beneficiary or sold, with the proceeds becoming part of the estate.
Jointly owned property can work differently. A home owned as joint tenants will generally pass automatically to the surviving owner. If it’s owned as tenants in common, the deceased’s individual share will form part of their estate.
There are also practical responsibilities to deal with while the estate is being administered. For example, the property may still need to be insured, maintained and kept secure, while any mortgage or additional costs will also need to be considered.
What Happens to Debts When Someone Dies?
A person’s debts do not automatically disappear when they die.
Instead, outstanding debts are generally paid from the estate before beneficiaries receive their inheritance. This may include mortgages, loans, credit cards, household bills and outstanding taxes.
Beneficiaries aren’t normally personally responsible for these debts simply because they’re inheriting from the estate.
If there isn’t enough money in the estate to cover everything owed, the estate may be considered insolvent. In this case, it’s worth getting legal advice before making any payments or distributing assets.
When Do Beneficiaries Receive Their Inheritance?
Beneficiaries won’t necessarily receive their inheritance as soon as probate is granted.
The executors first need to make sure the estate’s assets have been collected and that outstanding debts, tax and other liabilities have been dealt with. Property sales can also add time to the process.
In some cases, it may be possible to make an interim payment to beneficiaries before the entire estate has been finalised. However, executors need to make sure enough money remains available to cover anything the estate still owes.
How Long Does Probate Take?
There’s no set timeframe for administering an estate because every case is different.
GOV.UK currently advises that a Grant of Probate or Letters of Administration will usually be issued within 12 weeks of submitting the application, although it can take longer if further information is required.
Obtaining the grant is only one part of the process. Even after probate has been issued, assets may still need to be collected, property sold, debts paid and tax matters resolved. As a result, administering the full estate may take considerably longer.
How Much Does Probate Cost?
There can be several costs involved in dealing with probate, depending on the size and complexity of the estate.
This can include the probate application fee, as well as other expenses such as property valuations or professional fees where legal or specialist advice is required.
If you choose to use a solicitor, the cost will depend on how much support you need. You may only need help obtaining the Grant of Probate, or you may prefer a solicitor to handle the wider administration of the estate on your behalf.
Before proceeding, it’s worth getting a clear idea of the likely costs involved and what will be payable from the estate.
What Can Delay Probate?
As with any legal matter, there are several circumstances where the probate process or the wider administration of an estate may take longer than expected.
These can include:
- Problems locating the original will
- Property that needs to be sold
- Inheritance Tax matters
- Overseas assets
- Business interests
- Missing beneficiaries
- Complex trusts or investments
- Disagreements between executors or beneficiaries
- Claims against the estate
- A challenge to the validity of the will
Can a Will or Estate Be Disputed During Probate?
Disputes can arise before or during the administration of an estate.
Someone may believe that a will isn’t valid, for example, or there may be disagreements about the way an executor is handling the estate. Claims can also be made against an estate in certain circumstances.
If you’re concerned about a will or the way an estate is being administered, it’s worth seeking advice as early as possible. Once assets have been distributed, resolving a dispute can become more complicated.
You can also see our guide to challenging a will for more information about when a will may be contested and the process involved.
Do I Need a Solicitor for Probate?
You aren’t legally required to use a solicitor for every probate application. If the estate is relatively straightforward, the executors may choose to deal with the process themselves.
However, administering an estate comes with profound responsibilities, and mistakes can create problems for both the executors and beneficiaries.
Legal advice can be particularly useful where there is property, Inheritance Tax, lifetime trusts, business interests or overseas assets involved. The same applies where there isn’t a will, beneficiaries can’t be located, or a dispute has arisen over the estate.
Our solicitors can help with a particular stage of probate or take care of the wider estate administration on your behalf.
Getting Help With Probate and Estate Administration
Dealing with the estate of someone who has passed away can feel like a lot to manage, particularly at an already difficult time. From applying for probate to dealing with property, tax and beneficiaries, there can be more involved than initially expected.
At BGW Solicitors, our experienced team can help you understand what needs to be done and guide you through each stage of probate and estate administration.
Whether you need help obtaining a Grant of Probate or support dealing with the estate from start to finish, we’ll provide clear, practical advice based on your circumstances.
For an initial discussion, contact BGW Solicitors today. You can meet us at one of our offices in Castle Cary, Cheddar or Shepton Mallet, or arrange a virtual meeting if that’s more convenient.