Applying for probate: a step-by-step guide

Reviewed by James Badcock

Probate – the legal process for administering someone’s estate after they pass away – can quickly become complex and overwhelming.

From interpreting the will and locating key documents to navigating disagreements and managing someone’s assets, there’s plenty of many moving parts.

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And if you’re the executor of your parent’s will, then the responsibility falls to you to sort out probate after they die.

Here, we explain the probate process in England and Wales in practical, step-by-step terms to equip you to manage this process as smoothly as possible.

Note: This article provides general informational guidance and should not substitute personal, professional advice.

What is probate?

Probate is a legal procedure that comes into play after someone dies, serving as a crucial step in settling their affairs.

Legally, probate is specifically the process by which you apply to the court to confirm the validity of the deceased’s will (if available) and for authority to deal with their estate, but the term is commonly used to encompass the whole process of administering someone’s estate:, assessing the estate’s value, paying off debts and taxes, and distributing the remaining assets to the rightful beneficiaries.

Alongside this process, it is also necessary to assess whether any inheritance tax is due on the estate and pay this to HMRC. Inheritance tax is not dealt with in detail in this guide.

Probate provides a structured process to ensure that the estate distribution is carried out according to the deceased’s wishes or, in the absence of a will, in line with the laws of intestacy.

What does probate involve?

Probate serves several essential functions in the administration of an estate:

  1. Legal authentication: Probate begins with proving that the deceased’s will is valid, which confirms the executor’s authority to manage the estate.
  2. Asset collection: The executor is responsible for identifying and securing all of the deceased’s assets.
  3. Debt settlement: Before distributing the assets, the executor must settle any outstanding debts the deceased owes, including taxes.
  4. Asset distribution: Finally, the remaining assets are distributed among the beneficiaries according to the will or the intestacy rules if there is no will.

When is probate required?

Probate is generally necessary when the deceased owned assets solely in their name or had a share of assets held as ‘tenants in common’.

There are some cases when probate isn’t required, e.g. when assets are owned jointly, such as a home owned by spouses as joint tenants or a joint bank account. In that case, it typically passes automatically to the surviving owner without the need for probate.

A note on joint executors and probate

When a will names multiple executors, as is common in families, these individuals act as joint executors. This affects the probate process:

  • Shared responsibility: Joint executors must collaborate, make decisions, and share the workload in administering the estate. This requires clear communication and agreement on dividing tasks and making decisions.
  • Unified actions: Legal documents related to the estate, including the application for the grant of probate, typically require the signatures of all appointed executors, emphasising the need for unanimity.
  • Opting out: An executor named in the will can choose not to act, known as ‘renouncing’ their role or alternatively, if there are other executors who are able to act, one executor can step out of their role by way of a process known as ‘power reserved’.

Gathering essential information for probate

Let’s take a more detailed look at probate.

The first step in the probate process is to collect all necessary documents.

You’ll need the original will (if one exists), the death certificate, and an array of financial documents such as bank statements, property deeds, investment records, and insurance policies.

Start by searching the deceased’s personal files and reaching out to their solicitor, financial advisor, or even their bank for any leads.

Verifying the will’s validity is your next hurdle. For a will to be legally valid as a matter of English law, it must be voluntarily written by someone over 18, made in sound mind, and signed in the presence of two witnesses who also sign the will in the presence of the testator. If someone has made a will in accordance with the formalities of another country, this may also be valid in England.

If the will doesn’t meet these criteria or there’s no will at all, the estate will be distributed according to the rules of intestacy, which might not align with the deceased’s wishes. More on that shortly.

Valuing the estate

Understanding the full scope of the estate is crucial. This means valuing everything from property and vehicles to personal possessions, stocks, and savings.

It’s a meticulous task that requires leaving no stone unturned. For property and high-value items, professional valuations are recommended.

This step is essential for determining inheritance tax. For guidance, the government has detailed information on valuing an estate and an online inheritance tax calculator.

For complex estates, it’s highly recommended to get legal help from a solicitor.

You can use the Law Society’s Find a Solicitor service or Farewill, which provides fixed-free probate services.

Applying for the Grant of Probate

Once you have the paperwork and valuations ready, it’s time to apply for the grant of probate. This legal document gives you the authority to deal with the estate.

If you’re in England or Wales (different forms apply in Scotland and Northern Ireland), you’ll need to complete the PA1 form, which asks for details about the deceased and their estate. Be thorough; inaccuracies can cause delays.

You’ll also need to submit the original will and death certificate, so ensure you have these at hand.

Handling Inheritance Tax

Before the grant of probate is issued, any inheritance tax due on the estate must be paid.

This can be a complex calculation, depending on the estate’s value and any exemptions or reliefs that apply, such as transferring a nil-rate band between spouses. The tax must be paid within six months of the death, or interest starts accruing.

Sometimes, you can pay the tax in instalments, which is useful if the estate’s assets are not easily liquidated.

Detailed guidance is available on the gov.uk website, but getting professional advice is often wise considering the stakes.

Submitting the application

After filling out the PA1 form, gathering the necessary documents, and addressing the inheritance tax, you can submit your application to the Probate Registry. You can do this online or by post.

Be prepared for a wait; processing times can vary, especially with the current backlogs.

Keep an eye on your application’s progress and proactively address any queries from the Probate Registry to avoid unnecessary delays.

Waiting for the Grant of Probate

Patience is key during this stage. The waiting time for the grant can range from a few weeks to several months, depending on the complexity of the estate and the current backlog at the Probate Registry.

Use this time to keep everything in order and prepare for the next steps in administering the estate.

Administering the estate

Once you have the grant of probate, the real work begins. You’ll need to collect the deceased’s assets, settle any debts, and distribute what remains according to the will or the intestacy rules.

This involves a lot of legwork, from closing bank accounts to selling property, and requires detailed record-keeping.

Ensure you keep all beneficiaries informed throughout the process to avoid disputes and misunderstandings.

Some matters can be dealt with before the grant of probate is issued.  Banks may allow you to deal with relatively small account balances without probate, and life insurance companies may only require a death certificate, not probate, to pay out on a policy.

When someone passes away without a will, known as dying “intestate,” the probate process follows a different set of rules to ensure the deceased’s estate is distributed fairly according to intestacy laws.

This situation can make the process more complex, as there’s no explicit guide (a will) indicating the deceased’s wishes regarding the distribution of their estate and no executors have been appointed by the deceased.

Intestacy rules

In the absence of a will, intestacy rules come into play. These rules are a set of predefined legal guidelines that determine how the estate should be divided among surviving relatives.

Typically, the estate is distributed in a set order of priority: starting with the spouse or civil partner and children, and then extending to more distant relatives if the former do not exist.

It’s important to note that under intestacy rules, unmarried partners and close friends have no automatic right to inherit.

Applying for Letters of Administration

Without a will, the process of applying for a grant of probate is replaced by applying for “Letters of Administration.”

This is a similar legal document that grants authority to the administrator (often the next of kin) to manage and distribute the deceased’s estate. The application process involves:

  1. Determining who has the legal right to apply based on their relationship to the deceased, starting with the spouse or civil partner, followed by children, parents, siblings, and so forth.
  2. Completing the appropriate application form and an Inheritance Tax form.
  3. Submitting the application, the death certificate, and the required fee to the Probate Registry.

Responsibilities of the administrator

The appointed administrator has a duty to collect and safeguard the estate assets, settle any debts and liabilities, and then distribute the remaining assets according to the intestacy rules.

In summary

Probate is an undeniably complex and time-consuming process, that requires thorough preparation and a methodical approach.

While many elements of probate can be handled personally, don’t hesitate to seek professional advice for complex issues.

Numerous resources and organisations are available to support you through the probate process and help you avoid oversights and manage any challenging issues.

Common questions

  • Do all wills have to go through probate in the UK?

No, not all wills require probate in the UK. Whether probate is necessary depends on the type and value of the assets the deceased owned.

If the deceased owned assets of value in their sole name or owned property as ‘tenants in common, ‘ probate is likely needed to legally transfer or distribute these assets.

However, assets held in joint names often pass directly to the surviving owner without the need for probate.

  • How long does it take to get probate?

The time it takes to obtain probate in the UK can vary widely, often ranging from a few weeks to several months. Factors influencing the timeline include the estate’s complexity, the application’s accuracy, and any backlogs at the Probate Registry.

On average, a straightforward case might be resolved within 3 to 6 months from the application date, but more complex cases can take longer.

  • Can I stop a probate application?

Yes, a probate application can be halted if necessary. This might be required if there’s a dispute over the will, an error in the application, or if the executor decides to renounce their duties after initiating the process.

To stop a probate application, you should contact the Probate Registry immediately to inform them of the situation and follow their guidance on the required steps.

Terminology toolkit

  • Probate: The legal process of administering a deceased person’s estate, ensuring debts are paid and assets distributed according to the will or the law.
  • Grant of Probate: A legal document issued by the Probate Registry that authorises the executor(s) to manage and distribute the deceased’s estate.
  • Executor: A person named in a will who is responsible for administering the estate in accordance with the will’s instructions.
  • Administrator: A person appointed to manage the estate if no will or executor is named.
  • Intestacy: The condition of an estate of a person who dies without a will, in which case the distribution of the estate is determined by the laws of intestacy.
  • Grant of Representation: A general term that includes both the Grant of Probate (when there’s a will) and Letters of Administration (when there’s no will).
  • Letters of Administration: A document issued by the Probate Registry authorising someone to administer the estate when there’s no will.
  • Tenants in Common: A form of property co-ownership where each owner has a distinct share, which doesn’t automatically pass to the other owners upon death.
  • Joint Tenants: A form of property co-ownership where the owners have equal rights to the entire property, and the property passes automatically to the surviving owner(s) upon death.
  • Inheritance Tax: A tax on the estate of someone who has died, calculated based on the value of the estate and subject to various thresholds and exemptions.
  • Testator: A person who has made a valid will, specifying how their estate should be distributed upon their death.

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