Will & Probate

Find a solicitor that can assist with wills, probate and estate planning in your area.

Understanding Probate

Probate is the legal process that determines who has authority to manage the property, money, and possessions of someone who has died.

The person administering the estate must identify the assets and debts, deal with any tax, collect the estate, pay liabilities and distribute what remains to the correct beneficiaries.

This guide explains when a grant may be required and the options available for dealing with an estate in England and Wales. Scotland and Northern Ireland have different procedures.

What Is a Grant of Representation?

A grant of representation is the legal document that confirms who has authority to administer the estate.

The type of grant depends on whether the deceased left a valid will.

Grant of Probate

Where there is a valid will, the executors named in it normally apply for a Grant of Probate.

Letters of Administration

Where there is no valid will, an entitled relative may apply for Letters of Administration.

Letters of Administration may also be required where there is a will but no executor is able or willing to act.

When Is Probate Required?

A grant is commonly required where the estate includes:

• a property or share of a property held solely by the deceased;
• substantial bank or building society accounts;
• shares or investments held in the deceased's sole name;
• business interests;
• land;
• assets held by an institution that requires a grant; or
• complex or disputed assets.

There is no universal £5,000 probate threshold.

Each bank, building society and investment provider may set its own limit for releasing funds without a grant. The limit may depend on the amount held, the total value of the estate, and the institution's internal requirements.

The executor or administrator should contact each asset holder to determine which documents are required.

When Probate May Not Be Needed

A grant may not be required where:

• the estate contains only a small amount of money;
• the relevant bank agrees to release the funds without a grant;
• all assets were held jointly and pass automatically to the surviving owner;
• the estate consists only of personal possessions;
• the deceased owned no land, property or significant investments; or
• assets were held in a trust or passed under a valid nomination.

Jointly owned assets do not all pass in the same way. The legal ownership, beneficial ownership and terms of any account or investment should be checked.

Jointly Owned Property

Property owned as joint tenants normally passes automatically to the surviving joint tenant by right of survivorship.

Property owned as tenants in common does not pass automatically.

A grant may still be needed to deal with other estate assets even where the family home passes by survivorship.

Who Is Responsible for the Estate?

Where there is a will, the executors named in it are responsible for administering the estate.

Where there is no will, the intestacy rules determine who is entitled to apply as administrator.

The personal representatives are responsible for:

• locating the will;
• identifying assets and debts;
• valuing the estate;
• reporting and paying tax;
• applying for the grant where required;
• collecting estate assets;
• paying funeral expenses and liabilities;
• preparing estate accounts; and
• distributing the estate correctly.

Personal representatives can be personally liable if they distribute the estate incorrectly, fail to pay debts or taxes, or cause loss through a breach of duty.

Can an Executor Refuse to Act?

An executor who has not begun administering the estate may be able to renounce their appointment permanently.

Alternatively, they may allow another executor to obtain the grant while reserving the right to become involved later.

An executor who has already dealt with estate assets may have accepted the role and may no longer be able to renounce.

Legal advice should be obtained before signing any renunciation or taking steps that might amount to accepting the executorship.

Using a Probate Solicitor

Executors and administrators can instruct a probate solicitor to deal with all or part of the administration.

A solicitor may assist with:

• checking the validity of the will;
• confirming whether a grant is required;
• valuing the estate;
• Inheritance Tax forms;
• applying for Probate;
• collecting assets;
• selling or transferring property;
• paying debts and tax;
• preparing estate accounts;
• tracing beneficiaries;
• dealing with foreign assets;
• resolving disputes; and
• distributing the estate.

The personal representatives remain legally responsible for the administration. However, professional advice can reduce the risk of mistakes.

Applying for Probate Personally

An executor or administrator can apply without a solicitor, either online or by post where eligible.

Before applying, they will normally need to:

• locate the original will and any codicils;
• obtain the death certificate;
• identify the assets and debts;
• value the estate;
• check whether Inheritance Tax is due;
• submit any required tax information;
• pay sufficient Inheritance Tax where applicable; and
• complete the probate application.

A personal application may be appropriate for a straightforward estate. Still, professional advice should be considered where the estate contains property, trusts, businesses, tax complications, foreign assets or disagreements.

Valuing the Estate

The estate must be valued before Probate can be obtained.

The valuation should normally include:

• property and land;
• bank and building society accounts;
• shares and investments;
• business interests;
• vehicles and valuable possessions;
• money owed to the deceased;
• foreign assets;
• trust interests; and
• certain gifts made before death.

Debts and liabilities may include:

• mortgages;
• loans and credit cards;
• household bills;
• tax;
• care fees;
• funeral expenses; and
• other enforceable debts.

Reasonable efforts must be made to obtain accurate values. Professional valuations may be needed for property, businesses, valuable possessions or unusual assets.

Inheritance Tax and Probate

Inheritance Tax must be considered before applying for probate.

Even where no tax is due, the personal representatives need an estimate of the estate's value for the probate application.

Where Inheritance Tax is payable, some of it will normally have to be paid before the grant is issued.

Possible sources of payment include:

• the deceased's bank or investment accounts through the Direct Payment Scheme;
• estate funds that can be released without a grant;
• money advanced by beneficiaries;
• a specialist executor's loan; or
• payment by instalments where permitted for certain assets.

Tax advice may be required where the estate involves trusts, lifetime gifts, businesses, farms, foreign property or transferable allowances.

Paying Funeral Expenses

Banks will often release money directly to a funeral director before Probate is granted.

The personal representative will normally need to provide the death certificate and funeral invoice.

Funeral costs are generally paid from the estate before distributions are made to beneficiaries.

The Probate Application

Where there is a will, the executor applies using the current probate process.

Where there is no will, the person entitled under the intestacy rules applies for Letters of Administration.

The application may require:

• the original will and codicils;
• the death certificate;
• the estate valuation;
• Inheritance Tax information;
• details of the applicants;
• a legal statement confirming the information provided; and
• the probate application fee.

The original will becomes a public document once the grant is issued and is normally retained in the probate records.

How Long Does Probate Take?

Government guidance indicates that a straightforward application will usually be dealt with within approximately 12 weeks after submission.

It may take longer where:

• information is missing;
• the will has been damaged or altered;
• there are problems with the executors;
• Inheritance Tax matters remain outstanding;
• the estate is complex;
• a caveat has been entered;
• the Probate Registry raises questions; or
• another person disputes the application.

Obtaining the grant is only one part of the administration. Selling property, collecting investments, paying tax and distributing the estate can take considerably longer.

After Probate Is Granted

The personal representatives can use the grant to:

• close bank accounts;
• sell or transfer property;
• collect investments;
• deal with shares;
• recover money owed to the deceased;
• settle liabilities; and
• administer other estate assets.

Before distributing the estate, they should ensure that:

• all assets have been collected;
• debts and taxes have been paid;
• potential claims have been considered;
• beneficiaries have been correctly identified;
• estate accounts have been prepared; and
• sufficient money is retained for remaining liabilities.

Estates Without a Will

Where there is no valid will, the estate is distributed under the intestacy rules.

The rules determine which relatives inherit and in what proportions.

An unmarried partner does not automatically inherit under the intestacy rules, regardless of how long the couple lived together.

The intestacy rules may also fail to reflect informal family arrangements or the deceased's likely wishes.

Estate Debts

Debts must normally be paid before beneficiaries receive their inheritance.

Personal representatives should identify creditors and may consider placing statutory notices to reduce the risk of personal liability for unknown claims.

If the estate cannot pay all its debts, special insolvency rules apply. The personal representatives should not distribute anything without specialist advice.

Claims Against an Estate

Potential disputes may include:

• challenges to the validity of the will;
• claims that the deceased lacked capacity;
• allegations of undue influence;
• disputes about the meaning of the will;
• claims by dependants for reasonable financial provision;
• arguments about lifetime gifts;
• disputes between executors;
• missing beneficiaries; and
• claims involving jointly owned property.

Strict time limits may apply. Executors should obtain advice before distributing an estate where a claim has been threatened.

When a Solicitor May Be Particularly Important

Legal advice should be considered where:

• the estate includes land or property;
• Inheritance Tax may be payable;
• the will is unclear, damaged or missing;
• there is no will;
• an executor has died or cannot act;
• the estate includes a business or trust;
• assets are held overseas;
• the deceased made substantial lifetime gifts;
• the estate may be insolvent;
• beneficiaries cannot be located;
• there are disputes between family members; or
• a claim against the estate is possible.

How a Probate Solicitor Can Help

A probate solicitor may assist with:

• determining whether Probate is required;
• advising executors and administrators;
• interpreting the will;
• valuing the estate;
• Inheritance Tax reporting;
• applying for the grant;
• selling or transferring property;
• collecting bank accounts and investments;
• paying estate debts;
• preparing estate accounts;
• distributing inheritances;
• missing beneficiary searches;
• foreign assets;
• trust administration;
• contentious probate disputes; and
• claims against the estate.

Finding a Probate Solicitor

Probate is not always required, and there is no single estate-value threshold that applies to every bank, investment provider or asset.

Personal representatives can act on their own, but they are legally responsible for handling the estate properly. Professional assistance may be valuable where property, tax, trusts, foreign assets or disputes are involved.

Use the search facility at the top of this page to find a probate solicitor who can advise whether a grant is needed and assist with the administration of the estate.

This guide provides general information about Probate in England and Wales. It does not constitute legal or tax advice and should not replace advice about an individual estate.