Probate explained by probate solicitors
Probate definition: in England and Wales Probate is the word normally used to describe the legal and financial processes involved in dealing with the property, money and possessions (called the assets) of a person who has died.
Probate is the process of proving that a will is valid (if there is one) and confirming who has authority to administer the estate of the person who has died.
Before the next of kin or executor named in the will can claim, transfer, sell or distribute any of the deceased’s assets they might have to apply for a grant of probate.
What is a grant of probate?
A grant of probate is a legal document that’s sometimes needed to access bank accounts, sell assets and settle debts after someone has died.
This document is only called a grant of probate if the person left a will. If they didn’t leave a will, a grant of letters of administration is used instead. Both documents work in much the same way, giving a named person legal authority to deal with the estate of the person who died.
When probate has been granted, the next of kin or the executor can start to deal with the deceased person’s assets. If there was a will, this sets out how the assets should be distributed. If the person died without a will the law determines who should receive everything. See probate without will for more information.
The probate process explained
The probate process often involves a lot of complicated legal, tax and financial work which can be broken down into five different phases.
Probate phase 1: Identifying all of the deceased’s assets (property, investments and possessions) and all of their liabilities (debts ranging from loans to utility bills), to determine the value of their estate. At the same time, verifying who is entitled to inherit what from the estate, whether under the terms of the will, or in accordance with the rules of intestacy if there is not a will, and obtaining the necessary identification documents for those beneficiaries.
Probate phase 2: Paying Inheritance Tax to HM Revenue & Customs (HMRC) where applicable and submitting the Inheritance Tax return. Then applying to the Probate Registry for the grant of representation. This is a document confirming who has the legal authority to administer the estate.
Probate phase 3: After the grant of representation has been issued by the Probate Registry, liquidating (selling) the deceased’s assets, settling their liabilities, paying the final estate administration expenses and accounting to HMRC for any further Inheritance Tax, Income Tax or Capital Gains Tax due to or from the estate.
Probate phase 4: Preparing estate accounts for all payments into and out of the estate, and showing the balance left for distribution to the beneficiaries. Sending the estate accounts to the personal representatives (such as the executor in the will) for approval.
Probate phase 5: Providing there are no challenges to the estate or other complicating factors that prevent distribution, the final phase will involve transferring assets to the beneficiaries (if they want to keep these), and distributing the balance of the estate in line with the terms of the will or the rules of intestacy.
When is probate required?
Probate is usually needed in England or Wales when the person who died owned property or significant assets in their sole name. If a bank or other financial institution has asked for a grant of probate or grant of letters of administration (also called a grant of representation), this means probate is likely to be needed.
What is a personal representative in probate?
A personal representative is simply another name for someone who is an executor or, if there is no will, the person who has legal authority to administer the estate.
Do I need probate if there is a will?
The need for probate doesn’t depend on whether there’s a will, it depends on the financial situation of the person who died. The process is very similar regardless of whether there’s a will or not, but some of the terminology is different.
We have a will, but where do we start?
If there is a will and probate is needed then the executor needs apply for a grant of probate. If there is no will, then the administrator will need to apply for a grant of letters of administration.
Do I have to act as executor if I am named in the will?
No, you do not have to act as an executor. You have a couple of options. Your first option is to give up all rights to act as executor (as long as you haven’t done any work on the estate administration). Your other option, if there are other executors named in the will, is to choose to have ‘power reserved’. This allows the other executors to act but you can apply to join in the probate process later on if you want to or need to.
You can also choose to instruct a probate solicitor to complete the probate work for you.
If you do act as executor, it’s important that you understand the duties and responsibilities of an executor. If you make any mistakes, you could be held liable for these.
Do I need probate for a small estate?
It depends on the size of the estate and the value of individual assets. If the estate is small, with no property and less than £5,000 in the bank, probate isn’t likely to be needed. This is because some assets and small amounts of money can be dealt with without probate.
Banks and other financial institutions set their own limits for probate, so it’s worth checking with them whether they need a grant of representation. We have made a list of the most common high street banks and their probate thresholds – see bank limits for probate. If probate isn’t needed, the bank might still ask for a Statutory Declaration to be completed before they release the money, as this confirms that they’re releasing the money to the right person.
Do I need probate for joint assets?
If the person who died owned joint assets, such as a joint bank account or a property as joint tenants, this will pass to the surviving co-owner under the right of survivorship. The co-owner will need to produce the death certificate to formally transfer the asset into their sole name, but usually won’t need probate to do this.
Do I need probate for property owned as tenants in common?
Usually probate will be needed to deal with a property that is owned with someone else as tenants in common.
This is because when property is owned as tenants in common, each co-owner owns a distinct share of the property. This will pass to the beneficiaries named in their will, or according to the rules of intestacy if there isn’t a will. Probate will be needed to do this.
Do I need probate if my husband/wife/civil partner dies?
Again, it depends how the assets were owned. Many couples own their home as joint tenants and have joint bank accounts, meaning probate wouldn’t be required. But probate could be needed for any large assets owned in the deceased’s sole name, or a property owned as tenants in common.
Do I need probate to sell a house?
If a house is held in the deceased person’s sole name then a probate will be needed to sell it. If the house is held as joint tenants and the surviving co-owner wants to sell the house, they can do so with a copy of the deceased’s death certificate.
To sell a house that is owned as tenants in common, probate will be needed.
Do I need probate for Premium Bonds?
Premium Bonds are governed by National Savings and Investments (NS&I). If the Premium Bonds holding is more than £5,000, probate will be required.
After a Premium Bond holder dies, NS&I can keep the holding in the prize draw for up to 12 months. A claim form will need to be completed that asks NS&I to either keep the bonds in the prize draw or encash them.
Whose responsibility is it to get probate?
If the person who died left a valid will, this will name one or more executors, and it is their responsibility to apply for probate. If there isn’t a will, then inheritance rules called the rules of intestacy will determine whose responsibility it is to get probate.
To work out if you need probate, you’ll need to find out how much the deceased person’s assets are worth. You’ll also need to find out how these assets were held – in the deceased person’s sole name, or in joint names with someone else who is still alive.
If the deceased person owned very little, it’s unlikely that probate will be needed. This is known as having a small estate. However, it’s difficult to say exactly what constitutes a small estate, as there is no set limit.
Every bank and financial institution has their own limit and their own approach to probate. Some have a threshold for probate of £5,000, while others have raised it to £50,000.
To make matters more complicated, some banks and financial institutions will say that if the overall value of the deceased person’s estate is (for example) £15,000, probate is required. Others will say that probate is only needed if there is £15,000 in the individual account.
So you’ll need to confirm with the organisations holding the deceased person’s assets as to what their threshold for probate is. This will determine whether or not probate is needed.
Whether or not probate will be needed to deal with a property will depend on how it’s owned. Probate will always be needed to sell a property owned in the deceased’s sole name, but it’s not always needed to transfer a property to a surviving joint owner.
Assets held in joint names can be held as joint tenants or tenants in common.
If assets are held in joint names as joint tenants with someone else, it’s likely that probate won’t be necessary, regardless of the value.
That’s because if assets are held as joint tenants with someone else who is still alive, they will automatically pass to the surviving owner. So, for example, if your husband has died and you owned a property together as joint tenants, the property will transfer into your name. You don’t need probate for this to happen.
However, if you owned a property with your husband as tenants in common, his share of the property will not automatically transfer into your name on his death. Instead, it will pass to whoever is legally entitled to inherit under his will, or by the rules of intestacy.
If someone dies who owned a property in their sole name, you’ll need to go through the probate process to sell the property or transfer it into someone else’s name.
Whether any of the estate assets form part of a will trust has no bearing on the need for probate. If a will includes a will trust which needs to be dealt with as part of the probate process, probate may take longer. The need for probate depends on the assets in the estate though, not whether there is a trust.
The question of whether or not probate is needed can be a confusing one.
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 in their sole name, or had multiple high value assets, probate will be 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.
If you find out from our probate questionnaire that you do need probate, contact us for a fixed price quote.
If probate is needed, it’s possible to deal with probate yourself, providing you’re familiar with the legal process and confident completing all the required tasks. DIY probate is time consuming and the work involved can be complex.
Dealing with probate yourself also carries a level of risk, because you can be held personally financially liable if you make any mistakes.
For these reasons, many people choose to instruct a probate solicitor to carry out this work for them.
Before you decide if you want to deal with probate yourself, you should think carefully about whether you have the time, energy and skill set to carry out this work.
If you don’t apply for probate when it’s needed, the deceased’s assets can’t be accessed or transferred to any of the beneficiaries.
Probate gives a named person the legal authority to deal with the assets. Without this authority, they can’t do anything with the assets. This includes closing down bank accounts, selling or transferring property, transferring pensions and cashing in other investments. Essentially the assets will remain in limbo and the beneficiaries won’t be able to receive their inheritance.
Not obtaining probate when it’s needed can also cause problems for family and friends in the future. For example, someone who has lost their spouse may believe probate isn’t needed because everything was owned in joint names, but it later turns out that the house was actually owned in their spouse’s sole name. When that person dies, the people administering their estate will have to deal with the probate on their late spouse’s estate first. This could cause significant delays and increase the cost.
What documents do I need when applying for probate?
When a probate application is submitted to the Probate Registry, there are several documents and forms that will need to be included. These documents provide essential information on the estate, such as its value and how it will be distributed to the beneficiaries.
Documents and forms to include when applying for probate:
Applying for probate yourself? Then you will also need to submit the probate application form PA1 along with an official copy of the death certificate. Please note that if you deal with probate yourself you can be held financially liable for any loss resulting from mistakes you make.
Applying for probate through our probate solicitors? Then we they will submit all of the above documents to the Probate Registry on your behalf. We also take on full liability for the work carried out.
When sending the above documents, the probate application fee of £215 should be paid to the Probate Registry, unless the total value of the estate is under £5,000. If Co-op Legal Services submits the probate application on your behalf, then you will only need to pay a Probate Registry fee of £155.
How to apply for probate using form PA1
If you choose to apply for a grant of probate yourself, and not use a solicitor or professional probate provider, the first form you will need to complete is a probate PA1 application form.
You can apply for probate by completing form PA1 if you are an executor in the will or if you are a next of kin and there is no will.
The PA1 form is 12 pages long and requires a lot of information about the person who has died, along with details of the person who is applying for the grant of probate.
Which Inheritance Tax form do I need to apply for probate?
An Inheritance Tax form needs to be completed and submitted with your probate application, even if no inheritance tax is payable on the estate. There are two different types of Inheritance Tax form:
Form IHT205 Return of Estate Information. This is the shorter Inheritance Tax form, which will need to be completed if no Inheritance Tax is payable.
Form IHT400 Inheritance Tax Account. This is the longer Inheritance Tax form, which will need to be completed if Inheritance Tax is payable. There are also separate forms called schedules which ask for information about different assets in the estate. The relevant schedules will need to be completed too and sent in with the IHT400 form. If there is any Inheritance Tax to pay on the deceased’s estate, you will need to obtain a reference number and payslip from HMRC.
Can I apply for probate in the UK if I live overseas?
It depends where the estate assets are located.
The probate process differs from country to country, even within the UK. England and Wales share the same estate administration process, but the processes in Scotland and in Northern Ireland are different. If you are dealing with probate in Scotland, you’ll hear the word ‘executry’ used instead of probate.
You’ll need to understand the probate process in the country that has legal jurisdiction over the estate.
If you’re based abroad but the estate is in the UK, you can apply for probate in the UK, but there might be tax implications on any inheritance you’re set to receive and there are likely to be delays when sending or receiving paperwork. You’ll also need to visit to the UK to get all the paperwork together, like the will, and take an inventory of the assets you’ll be dealing with.
If there are assets in more than one country, this is known as a ‘cross-border estate’ and you’ll need to take extra care, as there can be legal difficulties. You’ll almost certainly need help from experienced probate solicitors in each of the countries involved. They will need to work together to make sure that the estate is dealt with properly, taking into account the law in each country.
The good news is that you don’t have to complete the estate administration process on your own. You can ask our probate solicitors to step in and complete the probate process for you.