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What is probate?

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.

To apply for a grant of probate, you have to pay an application fee.

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 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.

What is probate? Watch our 2 minute animation

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. 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.

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).

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.

Dealing with probate where there is no will

When an adult dies in England or Wales, their assets such as their property, money, financial affairs and possessions must be liquidated (sold) or transferred, their debts settled and what's left paid to their beneficiaries. This process is known as administering the estate, or probate.

The actual process of probate and estate administration is much the same regardless of whether or not there's a will. This means that there’s no real difference to the length of time it takes if someone dies having left a will or dies intestate (meaning they've died without a will).

The only difference is that the deceased's estate will be distributed under the terms of the law if there isn't a will, which might not align with their or their loved one's wishes. This can add complexity to the estate administration process.

When there's no will the law decides who inherits

When someone dies without a valid will, this is known as dying intestate. In this situation, the people who benefit from the estate are determined by inheritance rules called the rules of intestacy. Under these rules, the law will determine who inherits what and who can administer the estate.

Dealing with probate without a will can be an involved and complex process, as the family tree will need to be very clearly understood. Intestacy rules don’t always allow for modern family relationships and certain relatives, such as step children and unmarried partners, aren't recognised.

Due to the complexities of the rules of intestacy, it can be complicated to deal with probate when there is no will. There can be 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 they were genuine errors.

Grant of letters of administration

When probate without a will is needed, an application must be made to the court before the legal administration of the estate can begin. The person responsible for administering the estate is called the administrator, and they need to apply for a document called a grant of letters of administration.

What are letters of administration?

A grant of letters of administration is a document issued by the probate registry, which gives the administrator the legal authority to deal with the estate.

Once this document has been received, the process of administering the estate can begin.

When is a grant of letters of administration needed?

A grant of letters of administration won't always be needed, it depends what the person owned when they died and who is inheriting it. This is because some assets can be dealt with without a grant of letters of administration, and banks will release a certain amount of money without asking for this document. Each bank has their own threshold for probate.

A grant of letters of administration will always be needed to deal with a property owned in the sole name of the person who died or to deal with large amounts of money.

If this document is needed then without it no one will be able to access the assets in the estate without it. This means bank accounts can't be closed down and property can't be sold.

How to get a letter of administration

To apply for a letter of administration you need to have details of everything the deceased person owned and how much this is worth, as well as their outstanding debts. You will need this information to complete the Inheritance Tax returns and calculate any Inheritance Tax that needs to be paid to HM Revenue & Customs.

When making the application for a letter of administration, you will need to provide the original death certificate, the inheritance tax forms and the fee to the Probate Registry.

What’s the difference between letters of administration and grant of probate? The main difference is that a grant of probate is issued to the executor named in the will, whereas a grant of letters of administration is issued to the next of kin, who is called the administrator.

Other than this, the two documents work in a very similar way, in that they both give the named person legal authority to administer the estate.

How long does it take to get a grant of letters of administration?

The length of time that it takes to obtain a grant of letters of administration can vary dramatically. This will depend on the complexity of the situation, whether searches for a potential will need to be carried out and who the surviving relatives of the deceased person are (if any).

If the person who died has a surviving husband, wife or civil partner, this will be their main beneficiary and their administrator under the rules of intestacy. In this situation, probate is likely to be more straightforward.

If the person who died only has distant relatives and these relatives cannot be easily identified or located, then this could delay the process. Before the grant of letters of administration can be applied for, the appropriate administrator needs to be identified.

Once the administrator has been identified, they will need to calculate whether or not Inheritance Tax is payable on the estate, and then apply for the grant of letters of administration.

Specialist probate solicitors

Probate without a will can be dealt with by specialist probate solicitors.

Co-op Legal Services is the largest provider of probate and estate administration services in England and Wales.

Our award winning Probate team includes specialist probate solicitors, lawyers, case handlers, advisors and our national network of probate consultants; all of whom only deal with probate.

Many of our probate solicitors, lawyers and case handlers are members of the Society of Trusts and Estate Practitioners (STEP). All STEP members are subject to an extensive Code of Professional Conduct, requiring them at all times to act with integrity and in a manner that inspires the confidence, respect and trust of their clients and of the wider community.

Executor and administrator duties explained

Executors and administrators have a lot of responsibilities and can be held financially liable for any mistakes they make.

What is an executor?

After someone dies, their property, possessions, money and other affairs need to be sorted out. This is called dealing with their estate. If the person who died left a will, this will name an executor, which is the person responsible for doing this work. If there is no will then the person responsible for doing this work is called the administrator, and this is usually the next of kin.

The executor or administrator is the person who has the legal authority to do this work and they can ultimately be held accountable for any mistakes made.

You might also hear executors or administrators referred to as personal representatives. This is a general term for the person responsible for dealing with the estate.

With our probate complete service we take full responsibility for getting the grant of probate and dealing with the legal, tax, property and estate administration work.

We can also pay all the costs of a Co-op Funeralcare funeral, providing the estate has sufficient financial assets which can be sold in due course.

Have you been named as executor?

If the person who died left a will, this will name one or more people as executor.

If there isn't a will, the position of administrator is determined by inheritance rules called the rules of intestacy. These rules also determine how the estate will be distributed.

Executor duties and responsibilities explained

Being named as executor in a will can bring with it complicated, difficult and time-consuming duties which can take up to a year or more to complete.

It is crucial to get everything right because the executor is legally responsible for administering the estate in accordance with the terms of the will and the law. An executor is responsible for everything they do or fail to do when administering the estate.

Acting as the executor of a will can be a very daunting prospect because of the amount of legal, tax and administrative responsibilities. An executor's responsibilities last for the duration of the administration of the estate and can also carry on afterwards if there are trusts.

Duties of the executor

Legal responsibilities:

• applying for the grant of probate (or the grant of letters of administration if there isn't a will)
• identifying and dealing with any valid claims against the estate

Tax responsibilities:

• completing and submitting the Inheritance Tax (IHT) return and paying any Inheritance Tax owed
• completing the relevant Income Tax and Capital Gains Tax returns and paying any outstanding tax owed

Estate administration responsibilities:

• notifying and corresponding with all relevant organisations in order to cash or transfer the deceased’s assets and pay the debts and liabilities of the estate
• searching for unclaimed or missing assets
• preparing and distributing estate accounts
• correctly distributing the estate to the beneficiaries

If you find yourself in this situation and you are feeling overwhelmed, we can help. Our fully trained probate specialists will work alongside our probate solicitors and lawyers to support you, and our probate advisory team offer free initial advice and guidance on executor duties and responsibilities.

How long do the executor's duties take?

The length of time that it takes to administer an estate will vary depending on the size and complexity of the estate, as well as how much time the executor is able to commit to it and their proficiency in carrying out their duties. In many cases it can take up to a year, but it could take longer.

There is a lot of complex tax, legal and administrative work involved in the administration of an estate, so it’s important to be aware of what the executor role entails right from the outset.

Do all executors of a will have to apply for probate?

Often more than one executor is named in a will, but not all of the executors have to apply for probate. A maximum of four people can apply to the Probate Registry to prove a will and be named on the grant of probate.

If some executors choose not to be involved in the administration of the estate, they have two choices. They can either renounce their role altogether or they can have 'power reserved' to them, which means they can step back in later on if they choose to.

Personal representative responsibilities explained

A personal representative can be held personally financially liable for any loss resulting from a breach of their duty, even if the mistake was made in good faith, such as:

• failure to pay the debts and liabilities of the deceased
• failure to pay all Inheritance Tax, Income Tax & Capital Gains Tax due
• failure to distribute funds to an individual who is successful in their claim against the estate
• failure to identify, and correctly distribute funds to the beneficiaries, including any missing beneficiaries or missing assets

Disappointed family members or dependants have up to 6 months to make a claim after the grant of representation has been issued, while the deceased’s creditors can potentially make a claim against the personal representative for up to 12 years after the death.

How does probate work if the named executor has died?

If an executor dies after the estate administration has begun, what happens next depends on whether the executor dies before or after probate has been granted.

If an executor dies before probate has been granted, but there are other executors named in the will, the surviving executors can simply apply for the probate.

If all of the named executors have died or there are no substitute executors, the law will determine who is entitled to administer the estate. The Non-Contentious Probate Rules 1987 lists the order of priority of who can take this role.

If a sole executor dies after the grant of probate has been issued, if they left their own will, then the acting executor of their estate will also become the executor of the original estate. This means that no further grant of probate will need to be issued on the original estate. This is known as the chain of representation.

However, if the deceased executor did not leave a will, there isn't a chain of representation and a new grant would be required to complete the estate administration. The person who is entitled to apply for this document will usually be a residuary beneficiary.

What’s the difference between an executor and a trustee in probate?

Executors and trustees both have a part to play in probate, but these two roles are very different.

Trustees will only be needed if a trust arises under the will. The trustees are the people responsible for looking after the assets in the trust for the benefit of the named beneficiaries.