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.

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, wither 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 correct Inheritance Tax return (which is required even if no tax is due). 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.

Below we outline other common situations and explain whether probate is 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.

If you're struggling to find the will, see obtaining a copy of the will.

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.

For more information see probate for small estates.

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).

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.

Authorised and regulated by the Solicitors Regulation Authority

Probate estate administration in England and Wales is not a reserved legal activity. This means that unregulated providers can offer probate and estate administration services, regardless of whether they are insured, experienced or qualified to provide a full probate service.

Co-op Legal Services is authorised and regulated by the Solicitors Regulation Authority (SRA). We are the largest provider of probate and estate administration services in England and Wales, trusted to deal with over £1.3 billion in estates annually.

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

Co-op Legal Services is a trading name for Co-operative Legal Services Limited which is authorised and regulated by the Solicitors Regulation Authority, giving you peace of mind knowing that your probate affairs are being dealt with by a regulated organisation and by a brand name you know and can trust.

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 £1.3 billion in estates annually.