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What is probate and when is it required?
Probate is the legal and financial process of dealing with the property, money, and possessions of a person who has died.
What is probate?
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 a will for more information.
To apply for a grant of probate, you have to pay an application fee. Find out how much probate costs.
When is probate required?
1 in 2 people need probate after someone dies. Whether probate is needed depends on what the person owned when they were alive. For example, if they owned a property in their sole name, or had other high value assets, it’s likely you’ll need probate to deal with their estate.
Visit our Do I need probate? page to find out if you need probate.
How does the probate process work?
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 isn't 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.
How long does probate take?
The probate process usually takes 9 to 12 months to complete. This can vary depending on several factors.
Find out more about timeframes for probate.
Common questions about probate
The probate process can be daunting, especially if you haven’t been through it before.
Here we answer some of the most common questions about probate.
Where do I start with probate?
If there is a will and probate is needed then the executor needs to 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.
If you're struggling to locate the will, find out how to find a copy of the will.
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.
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.
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.
What happens if I don’t apply for probate?
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.
Can I apply for probate myself?
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.
How long will it take to receive inheritance?
It generally takes between 6 to 12 months for beneficiaries to begin receiving their inheritance. However, this timeline can vary based on the estate's complexity and potential delays at the Probate Registry, as frequently highlighted in media reports.
Learn more about how long probate might take.
How do I calculate the value of the estate?
Valuing an estate for probate is one of the most important parts of the probate process.
Find out how to value an estate for probate.
How do I know if there's Inheritance Tax to pay?
In England and Wales, you’ll usually have to pay Inheritance Tax if the person who died had an estate worth over £325,000.
Find out more about Inheritance Tax and probate, including when it needs to be paid and how to pay it.
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.
How we can help you
With our probate complete service we take full responsibility for getting the grant of probate and dealing with the legal, tax (excluding VAT), property and estate administration affairs.
We can pay all the costs of a Co-op Funeralcare funeral and reimburse any deposit paid, as soon as you have instructed us to represent you (providing that the estate owns sufficient assets that can be sold in due course).
Co-op Members save £100 or get 5% off probate and estate administration whichever is higher, terms and conditions apply.
We can deal with HM Revenue & Customs on your behalf.
We can explain the probate and estate administration processes to you and provide free initial advice and guidance, and we provide you with a written fixed fee quote for dealing with probate on your behalf.
As part of the Co-op Group our values of openness, honesty, social responsibility and caring for others are core to the service we provide.
Co-op Legal Services is the largest provider of probate and estate administration services in England and Wales, and is trusted to deal with over £3 billion in estates annually.
Co-op Legal Services has over 800 staff working in different businesses with offices in Manchester, Bristol, Stratford-upon-Avon, Sheffield and London.
