It is very common for people to not know the meaning of probate, particularly if they have never had to deal with a deceased relative’s estate before.
Probate is the entire legal and financial process of administering the deceased’s estate. This involves organising their money, assets and possessions and distributing them as inheritance, after paying any taxes and debts. If the deceased has left a Will, it will name someone that they've chosen to administer their estate (an executor).
The meaning of probate and whether it is necessary is often confusing, particularly if there is no Will. Sometimes it will be easy to determine – for instance, if the deceased person had a small amount of money in the bank and owned nothing else, probate is unlikely to be needed. But if the deceased owned a property, or had multiple high value assets, probate will be required. If you are still unsure and want to talk to one of the team regarding ‘what is probate’ and ‘do I need probate’ please contact us and we’ll be happy to help.
The question of whether or not probate is needed can be a confusing one.
At times it will be easy to determine – for instance, if the deceased person had a small amount of money in the bank and owned nothing else, probate is unlikely to be needed. However, if the deceased owned a property in their sole name, owned a property as tenants in common, or had any high value assets, probate will be almost certainly required.
For many people who are dealing with the death of a loved one, further advice, guidance and support is needed, and our probate specialists can help you to find out for certain whether or not probate is needed in your circumstances. Please contact us for a no-obligation conversation and we’ll help you determine if probate is needed for your particular circumstance.
Alternatively, you can take our short 10-question online quiz which will take no longer than 3 minutes to complete - START QUIZ
If probate is needed but you don't apply for it, the beneficiaries may not be able to receive their inheritance. Instead, the deceased person's assets that require probate will be frozen and held in a state of limbo. Without probate, the executors may not be able to show the legal authority to access, sell or transfer the assets. A Grant of Probate gives a named person or persons the legal authority to deal with a deceased person's assets. If the executors fail to apply for probate, this may give rise to a claim against the executors from the beneficiaries, if the delay causes a loss (for example in the value of property or investments).
While the presence of a will can make the probate process quicker, this is not always the case. On average, in England and Wales, it takes around 3 months to obtain the Grant of Probate and a further 3-12 months to complete the administration of the estate, depending on the types of assets to be dealt with, regardless of whether or not there is a will.
It can take longer than this though, and there are a number of delays that can occur along the way. For example, if a property needs to be sold but there are issues with the sale, this, in turn, will delay the completion of the probate process.
An executor is allowed 12 months to administer the estate and distribute the deceased's assets to the beneficiaries. This is called the Executor’s Year. However, this isn't a strict deadline and complex estates often take longer than this to complete. and there are valid reasons for delaying any distributions Providing that the person doing the work is acting in good faith and can justify the delay then this is unlikely to be an issue.
It is worth noting, however, that there are still some strict Inheritance Tax and other deadlines which must be met during the estate administration regardless of whether probate has been applied for or not.
The Grant of Probate involves ascertaining the value of the estate and then applying to the Probate Registry (a branch of the Courts) to obtain a document that unlocks certain assets (commonly property and higher-value accounts or investments) and allows the assets to be realised by the executors or professionals acting on their behalf.
The Estate Administration involves dealing with the estate, collecting any assets, paying any funeral costs and other debts, putting a notice in the Gazette, distributing the estate to the beneficiaries and preparing final estate accounts. This allows the assets to be dealt with and distributed according to the deceased’s will or the rules of intestacy (if there is no will).
Our Grant of Probate service is just £755. Our Complete Estate Service is costed on an individual basis starting from £1,450 plus VAT and is considerably less than banks and solicitors. We have optional other services if you require them, such as dealing with a property transfer, selling your property or writing a new will. All fees are transparent and agreed in advance.
Our probate practitioners are authorised by the ICAEW which means we are legally able to carry out both the Grant of Probate service and the Complete Estate Service and we are covered by professional indemnity insurance.
Probate can be a complex and time-consuming process, involving a significant amount of legal, tax and administrative work. The main Executor/Administrator duties that need to be carried out include:
It's important to bear in mind that whoever carries out this work can be held personally liable for any mistakes made. So, while deadlines do need to be met, it's important not to rush these steps. Our Complete Estate Service takes the worry out of completing these as we can do all of this for you. All of our work is covered by our professional indemnity insurance policy.
There's no definitive rule on how soon after death probate should be started, but it's a good idea to begin this process as soon as you feel able to do so. You may find that you are unable to deal with any of the deceased's assets until you have obtained the Grant of Probate from the Probate Registry, and this can often take around 3 months to process, sometimes longer.
Some things that will need to be done straight after the death include registering the death, securing the property (if it's empty), contacting insurers to check that policies are still valid and notifying organisations such as the deceased's bank and government departments such as the Department for Work and Pensions (DWP) and HM Revenue & Customs.
When you make an application for probate to the Probate Registry, you must submit the original will to be proved.
Finding the original will
When a will is made, the Executor is usually told where the will is stored. We recommend that a thorough search of the deceased person’s paperwork is done to locate a will, or to locate any reference to a will being held by a law firm or will writing services company. If a solicitor, lawyer or other professional has drafted the will, then it may be held with them. It’s also possible that a bank may be storing the will.
Executors of the will are entitled to obtain a copy of the will from the solicitor. Before the will can be released, the Executors have to prove that they are who they say they are (providing proof of identity) and provide evidence of the person’s death (by providing an original death certificate).
In England & Wales, there is no central register of wills and sometimes the firm or company who prepared the will may have either closed down or been taken over. This may make it difficult or impossible to find the original will.
If you know that the will was made by solicitors and it was not revoked, you can contact the Solicitors Regulation Authority (SRA) Intervention Archives department. When the Solicitors Regulation Authority closes down a firm, they take all the documents and papers that relate to its clients, and so the SRA may be able to locate the original will for you.
Other options include contacting the London Principal Probate Registry who have a wills storage facility. In more recent years, a company called Certainty have kept a register of wills and can conduct a search of the register for you for a fee of £30.
Initially, it is only the Executors who are entitled to see the will, and they do not have to disclose the contents of the will straight away. However, they might not be able to close accounts or sell assets such as property and shares until the Court has issued a Grant of Probate, this being confirmation of the Executor’s legal authority to administer the estate.
When the Grant of Probate has been issued the will becomes a public document and anyone can apply to the Court to get a copy of the will for £1.50 by visiting the Government’s website.
When an adult person has died in England or Wales, their assets such as their property, money, financial affairs and possessions must be liquidated (sold) or transferred, their liabilities settled and the balance paid to their beneficiaries. This is known as "administering the estate" (see our Complete Estate Service).
When someone dies without having a valid will, this is known as dying "intestate". In this situation, and also if there are no beneficiaries stated in a valid will, the people who benefit from the estate and who can deal with the estate are determined by laws commonly referred to as the Rules of Intestacy.
Put simply, this means that if you die without a valid will, the law will determine who should be allowed to administer the estate (and apply for Probate) and who should receive everything you own, from your bank accounts to your pets.
Intestacy rules can be harsh, as they often don’t allow for modern family relationships. They only recognise the blood relative next-of-kin as those people entitled to administer and receive the estate, so in many cases when there is no will, unmarried couples, unregistered partners, step-children, step-siblings will not inherit anything at all.
When probate without a will is required, an application must be made to the Court before the legal administration of the estate can begin.
The Intestacy Rules determine who will benefit from an estate. This can be an involved and complex process, as the family tree will need to be very clearly understood. Broadly, the order in which the law determines who should deal with the estate when there is no will is as follows:
You will need to work down the list until you reach somebody eligible, and where there is more than one person eligible in the same class, those people are all equally entitled to deal with the estate.
However, the list above does not exactly mirror who may inherit an estate where there is no will, although it is similar in some respects.
Due to the complexities of Intestacy law, cases with no valid will can have a greater risk of mistakes being made in the identification of the estate administrators and beneficiaries. Estate administrators can be held personally financially liable for any loss resulting from a breach of their duty, even if any mistakes made were genuine errors.
We suggest that intestacy cases are best dealt with by specialist probate practitioners, such as us.
In short, you do not need to use a solicitor. Many people falsely assume that you need to use a solicitor for the probate process. However, you usually only need to use a solicitor if the will is contentious.
You can use a professional probate practitioner such as Probates Online. We are authorised by the Institute of Chartered Accountants in England and Wales to carry out the reserved legal activity of non-contentious probate. This allows us to apply for the grant of probate on your behalf, and we can also administer the estate for the executors. You can read more here about our Grant of Probate Service or our Complete Estate Service.
You can handle probate yourself, but we’ve found that many people don’t want the stress and worry of this when they’re already going through an incredibly difficult time following the loss of a loved one.
An Executor is the person (or people) who has been named in a will to administer the estate of the deceased. Sometimes the will also appoints a Trustee, who will be responsible for managing any ongoing Trusts that are specified in the will, such as a property trust, or a trust set up for children.
Often the same people are named as both Trustees and Executors. To clear up any potential confusion between these two roles, the following information outlines how they differ and the main duties of each.
When a Trust has been established as part of the will, a Trustee needs to be specifically named in the will. The Trustee will then become responsible for receiving and managing this part of the inheritance on behalf of the Trust or beneficiary.
After the Executor has distributed this part of the Estate to the Trustee, the Trustee will be free to carry out their role in accordance with the terms of the Trust. This includes treating all the beneficiaries and their interests fairly, as per the duty of care under the Trustee Act 2000. This falls outside of the probate estate administration.
The main duties and responsibilities of this role include:
When a beneficiary is under the age of 18, a Trustee will likely be appointed to look after any inheritance until they come of age.
An Executor will also be officially named in the will. More than one person can be named as an Executor, and they will be legally responsible for administering the Estate of the deceased. They will also be fully entrusted to carry out the terms of the will.
This can be an extensive and time-consuming role and carries a significant amount of responsibility, along with potential liability. It may also require a certain amount of knowledge on trusts, beneficiaries, legal responsibilities and estate process in order to carry out their duties correctly.
As well as potentially needing to apply for a Grant of Probate, which will give them legal authority, the Executor will have a number of important responsibilities and duties, including:
Once the beneficiaries have issued receipts confirming they have received payments they were due from the Estate, the Executor can be discharged from their duty as administrator.
We are authorised and regulated non-contentious probate practitioners and we understand that the roles of Executor and Trustee can bring complexity, pressure and stress, so we want to help you get things done correctly.
If an executor named in the will dies before the deceased
and before the grant of probate has been issued by the Court, what happens next depends on what the will says. If there are other executors or reserve executors named in the will, it would be their responsibility to deal with the estate.
If all of the named executors have died before the deceased then it is likely the beneficiary or beneficiaries who are receiving the largest proportion of the estate would have the right to administer the estate. A maximum of four executors can act during probate and we would always recommend that two executors act to minimise the risk of this situation arising.
If there are more than four beneficiaries with equal shares of the estate, they are all equally entitled to act as executors, but only a maximum of four can do so. It is up to the beneficiaries to decide between them who should act and administer the estate.
With our Complete Estate Service, we take full responsibility for getting the Grant of Probate and dealing with the legal, tax, property and estate administration affairs.
If the executor dies after obtaining the grant of probate
If the executor dies after obtaining the Grant of Probate, but before they have completed the administration of the estate, what happens next depends on what the will says. If the will names any additional executors, then they would be responsible for stepping in. If no other executors are named, find out whether the executor who died left a will.
If the executor has left a will then it becomes the responsibility of their executor to finalise the original estate. This is called the Chain of Representation. The Grant of Probate that was issued to the original Executor must be revoked by the Probate Registry and the new Executor must make a new application for a Grant of Probate in their own name.
If the Executor who died didn't leave a will then, again, it's likely that the beneficiary or beneficiaries who are receiving the largest sum of the estate would want to deal with the estate.
The Grant of Probate that was issued to the original executor must be revoked by the Probate Registry and a new application made. An executor who has previously renounced their role will not able to take the place of the executor who has died.
Any situations that fall into these categories or similar would certainly require professional advice to ensure things are dealt with correctly and we are happy to advise in these situations.
Not all of the Executors named in a will have to apply for probate, although this can sometimes be the most logical option. If some Executors choose not to be involved in the administration of the Estate, then they have several options;
a). Renouncing executor duties. Any Executor who does not wish to have an active role in winding up someone's affairs when they die has the choice to resign, or "renounce”, their right to apply for a Grant of Probate. This will be by way of a “Deed of Renunciation”. A renunciation is usually final, and once it has been sent to the Probate Registry, it can only be retracted or withdrawn with the consent of a District Judge or Probate Registrar. It is important to consider this if you are an Executor who is considering renouncing.
b). Remaining as 'Power Reserved'
An Executor named in a will can also choose to have Power Reserved to them. It is a requirement of the Court that any Executors who are not applying for a Grant of Probate be served with a “Notice of Power Reserved”. This is a formal written notice from the acting Executor, advising that they are intending to apply for a Grant of Probate in the names of the acting Executor only.
The Grant of Probate issued by the Probate Court will state the name of the acting Executor but the Executor who is not named on the Grant will be known as having “Power Reserved". This means that they can still seek to become an active Executor at a later date.
Applying for a Grant of Probate with power reserved to others can be particularly useful in situations where for example an Executor lives in another country and it would be impractical for all of the paperwork to be signed by all or both Executors named in a will.
Unlike a renunciation, an Executor who has power reserved to them can still choose to become involved in the administration of the Estate at a later time if they want or need to.
Any Inheritance Tax should be paid by the end of the sixth month after death. The value of the estate will need to be calculated, any reliefs or exemptions applied correctly, any value of gifts in the 7 years before death may need to be added back to the estate value. When this has been done, the Inheritance Tax forms may be submitted to either HM Revenue & Customs or the Probate Registry, as applicable.
When an application is made to the Probate Registry for a Grant of Representation, then an Inheritance Tax form will need to be submitted with the application. This will include a calculation of the value of the Estate as well as a calculation of any Inheritance Tax that is due (or confirmation that any tax has already been paid). The forms are required even if there is no actual tax to be paid. This is so that HM Revenue & Customs knows that no tax is due.
If Inheritance Tax is payable, then this will need to be paid (or partially paid) by the end of the sixth month after the death. If this deadline is missed, HM Revenue & Customs will charge interest on the outstanding amount up until it is paid.
Some Inheritance Tax can be deferred over a 10 year period in certain circumstances and on certain assets, although interest may still apply.
Another important deadline is two months from the statutory advert being placed. This is the time limit on any claims from third parties to come forward with any claim against the estate. There is a six-month deadline from the date of the Grant of Probate being issued for any claims under the Inheritance (Provisions for Family and Dependents) Act 1975.
Yes. The estate's beneficiaries may decide for a number of reasons that they wish to amend the way in which assets in the estate are distributed. The reasons may include a potential tax saving, or to avoid risks to the estate assets in the event of care fees if a large sum is left to an elderly beneficiary, or avoiding the risk of double taxation in the event that a beneficiary dies shortly after they inherit. If the beneficiaries choose to alter or redirect their share of the inheritance, a Deed of Variation will be required. This can be done at any time after the death, but it will need to be signed within 2 years of the death. If it is signed after this point, then it will not be treated as valid for Inheritance Tax purposes, which can have significant implications on the estate's Inheritance Tax liability. A Deed of Variation cannot disinherit anybody unless they agree to it. We can advise on the merits of having a Deed of Variation and is very much dependent on the circumstances of not just the estate but also the beneficiaries.
If you’re concerned about the amount of work involved in Probate, you can instruct a professional Probate Specialist such as us to take care of the Estate Administration on your behalf. With our full probate service, our Probate Specialists can take care of all of the legal, tax and administrative work on your behalf, ensuring that all deadlines are met along the way.