What is probate?
Probate is the legal right to deal with (eg sell, rent out, or transfer) the assets of somebody who has died (eg their money, property, and belongings).
Probate must be applied for in accordance with a specific process.
Once someone has been granted probate, they can deal with the relevant by assets by, for example:
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paying necessary taxes (eg inheritance tax (IHT)) and paying off debts
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selling assets
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distributing assets as set out in the Will of the person who has died or, if they didn’t have a will, in accordance with the intestacy rules
Do I need to apply for probate?
Probate is not necessary in certain circumstances. For example, it’s often not needed if:
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the assets are owned jointly with somebody else
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property is owned as ‘joint tenants’ with somebody else (this is a specific type of property ownership), or
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the person who has died only has savings
Whether probate is required to deal with certain assets depends largely on:
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the rules of the organisation or institution via which the assets are accessed (eg banks and other financial institutions). Different institutions set different account values over which probate is required to access an account, which can range from about £5,000 to £50,000
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any written instructions as to how assets are owned and how they are to be inherited (eg Wills, Codicils, or Declarations of trust). For example, these may set out whether or not surviving co-owners of assets are to inherit them
If the circumstances in which it is not necessary to apply for probate do not apply, it is likely that probate will be required to deal with the assets making up an estate. For more help ascertaining when probate is necessary, read the government’s guidance.
Who can apply for probate?
Which people can apply for probate in relation to someone’s estate depends on whether or not the person who died left a valid will. It will be the person (or one of people) who will deal with the estate (eg who pays taxes and debts and transfers assets to those who will inherit them).
If they left a valid will, somebody named as an executor in the will (or in any codicils to it) can apply for probate. If multiple executors are named, they should agree who will apply for probate before an application is made.
If they did not leave a valid will, the person considered to be the most ‘entitled’ person can apply. This is generally the person’s closest living relative. Who this is should be worked out in accordance with the intestacy rules. This person will be referred to as the ‘administrator’ of the estate.
‘Personal representatives’ refers generally to both executors and administrators.
How do I apply for probate?
Before applying
Applying for probate can be a complex process. Preparation is required before an actual is made. Before making an application:
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those who could potentially be personal representatives should establish who the personal representative(s) are. The personal representatives will either be named in the will or in codicils to it (for an executor) or will be established according to the intestacy rules (for an administrator)
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the personal representatives should prepare a comprehensive list of all property, money, and possessions that constitute the estate (ie what the person who died owned when they died), as well as debts. They should use this to determine the estate’s total value and the amount of inheritance tax (IHT) that’s likely to be due
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if any IHT is due, the personal representatives should start paying it
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the personal representatives should report comprehensive details about the estate to HMRC if IHT is due or if HMRC needs full details for another reason. Specific forms should be used. If the personal representatives report full details to HMRC, they should then wait 20 working days before applying for probate
Applying for probate
Once a personal representative is ready to apply for probate, they can do so by post (by submitting certain forms) or by applying online. Fees will need to be paid, the value of which depends on the value of the estate.
An applicant will need to submit supporting documentation with their probate application. This includes:
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an original death certificate or an interim death certificate provided by a coroner
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the original will and any codicils to it, if a valid will was left
Applications are usually reviewed within 16 weeks. Additional information may be requested.
If the Probate Service approves an application, they will grant the applicant a legal document that allows them to deal with the estate. The specific type of document will depend on whether there was a valid will and, if so, whether it named executors. The document will be either a ‘grant or probate’, ‘letters of administration with will annexed’, or ‘letters of administration’. These documents are sometimes referred to generally as ‘grants of representation’.
Can an application for probate be challenged?
If someone disagrees with another person’s application for probate (eg if they disagree over who is entitled to apply for probate or whether the will exists or is legal), they can first apply to prevent the probate application (or any others) from being approved for an initial 6-month period. This is called entering a caveat. For more information on the process of entering a caveat, read the government’s guidance.
If a caveat is entered and the initial probate applicant responds with a ‘warning’ (essentially a form stating why they’re entitled to apply for probate), the caveat may be extended and the parties may need to take the matter to the courts to resolve it. This process can become long and complex. For more information, read the government’s guidance.
Mediating probate disputes
If an application for probate is challenged, the issue may be resolved by facilitated discussion between the parties (ie via mediation) before warnings are issued or before the courts are involved. Mediation helps parties to come to an agreement on an issue. Such agreements are not automatically legally binding, but if the parties enter into a valid contract based on them, they can be.
Certain types of probate disputes may be suitable for mediation, for example, challenges of the validity of a will.
Mediation can have many benefits in comparison to resolution via the courts (ie litigation), for example:
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reduced costs
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shorter timescales
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the opportunity to respectfully discuss matters and preserve interpersonal relationships
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confidentiality
How do I deal with an estate?
Dealing with an estate involves dealing with someone’s assets after they have died. It is a key part of carrying out the wishes left in their will, if they left one. Personal representatives should mostly deal with an estate after they have been granted probate, if probate is required.
Generally, dealing with an estate can involve:
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opening a bank account on behalf of the estate to be used to pay the probate application fees and other expenses and to hold the estate’s assets
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placing newspaper advertisements for creditors to see. Generally, notices should be placed in The Gazette allowing 2 months for debts to be collected
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send copies of the grant of representation to all asset holders (eg banks and pension funds) and requesting the release of assets so that they can be dealt with
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paying any debts (eg household bills, mortgages, loans, or overdrafts) that are owed by the person who died. These may need to be paid according to a set order of priority (eg if the estate is insolvent and cannot settle all debts)
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paying any unpaid personal taxes and filling in any necessary Self Assessment tax returns
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working out and start paying any IHT due by the end of the sixth month after the person died
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paying any necessary taxes on income acquired by the estate whilst it is being dealt with (eg from rental income) and reporting any required information to HMRC in relation to this income
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distributing the estate to all beneficiaries (ie people who are to inherit under the will or the intestacy rules)
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selling any assets that need to be sold (including shares or property) and paying any relevant taxes (eg capital gains tax (CGT))
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preparing final estate accounts, once everything has been distributed
For more information, read Administering a will.
