What is Probate and what does it involve?

Probate can be a confusing process during an emotionally stressful time.

Don’t worry if you’re stuck. Our specialist probate solicitors have the answers you’re looking for.

Q: What exactly is probate?

A: Probate is the legal process of dealing with the estate of someone who has passed away. It includes several stages, including dealing with the deceased’s finances, valuing their estate and sometimes proving that their will is valid. Ultimately, probate ends when a grant of probate is approved, signalling the distribution of the deceased’s estate to the beneficiaries of their will.

Q: How much does probate cost?

A: The cost of probate will depend on a range of variables, including how large the estate is, how complex the estate is and things like whether the deceased owned a business. There are a number of costs that must be paid in each and every probate. These include a probate application fee of £155, an advertisement in the London Gazette (regardless of whether you actually live in London), which is £70 – £285, and various additional financial search costs for thoroughness.

Altough, the cost varies depending on the case, an average simple probate case at Britton and Time for an estate valued at less than £325,000 will cost £3,950 plus VAT.

Q: Do I have to go through probate?

A: Not every estate requires probate, and not every estate that requires probate requires a solicitor. The rule of thumb is the larger someone’s estate is, the more likely it will require probate and legal help.

The main factors that affect whether you’ll need to go through probate are whether any property was jointly owned, who the beneficiaries are and the documents required by the bank where the deceased was a client.

Financial organisations will require proof in the form of a grant of probate to enable access to the deceased’s funds. Each organisation has its own threshold, but proof is typically required for sums upwards of £5,000. No proof, no distribution of the estate.

There are cases where probate is not required, for example if the estate is very small, or the deceased left cash.

Q: How long does probate take?

A: There’s no single answer to how long any given probate takes. The time it takes to get an inheritance depends on a variety of variables such as if any complex problems need resolving. However,  on average, in the UK it can take between 6 and 9 months.

If the deceased’s estate is particularly complicated, for example they own any overseas assets or have left their estate to a significantly large number of beneficiaries who all need to be tracked and notified, probate can take longer than 12 months.

There isn’t a maximum period of time probate can take, but there is a minimum. Inheritance tax must be paid within the first 6 months of the deceased’s passing. Failing to pay inheritance tax in time will incur interest and penalties from HMRC.

Q: Do I have to use a solicitor for probate?

A: No. A solicitor isn’t mandatory for probate, but many people opt to use one for convenience. For example, where the deceased kept poor financial records, it could take weeks of looking through paperwork and requesting documents from creditors to determine whether there are any outstanding payments. A solicitor will do all of this for you and more.

And then there is inheritance tax that must be paid before the estate can be distributed. This must be calculated correctly, or risk delaying the approval of the grant of probate in a process that, when progressing smoothly, already takes a minimum of 6 months.

With other life commitments in the way, instructing a solicitor for probate is a cost-effective way to ensure the process proceeds smoothly.

Q: What are my duties as an executor?

A: The executor or administrator of a will is in charge of each stage during the entire probate procedure, including:

  1. Registering the death, obtaining a will, gathering a complete financial record from the deceased, notifying banks and gathering a list of unpaid debts
  2. Identifying the extent of the estate and its value before organising the inheritance tax payment on the combined value and reporting it to HMRC
  3. Providing all relevant paperwork and signing a statement of truth formally declaring all the information provided is accurate
  4. Distributing the assets from the estate to the beneficiaries named in the will

Q: What is the difference between a simple and complex probate application?

A: No two probate cases are the same, and many factors influence the process.

A simple probate case involves cases where there are either very few assets with low to moderate value, or the estate is concentrated into one large asset, such as a house. These are referred to as simple because unless another person comes forward to contest the contents of the will, they will normally proceed smoothly, provided the deceased kept organised financial records. Simple probates will apply to the vast majority of people.

A complex probate involves factors that directly increase the length and cost of the procedure. For example, an estate that contained an overseas business in the USA, a house in the UK and a holiday home in France would be significantly more complex to deal with than one where the deceased only leaves a lump sum of £5,000.

Q: What happens if the deceased didn’t leave a will?

A: If the deceased pass away with no will, an executor must come forward to act, otherwise the estate risks going to the Crown. There is a strict order of priority for who can act as the executor, which is:

  1. A surviving spouse or civil partner
  2. Any sons or daughters
  3. Parents of the deceased
  4. Brothers and sisters of the deceased
  5. Other, more distant relatives

No will can make the probate process much more complicated and, therefore, we advise you to seek legal advice to assure the correct completion of the essential stages.

Q: I know the deceased had a will, but I can’t find it. What can I do?

A: If you can’t find the deceased’s will, the first thing you should do is to contact the solicitors or will writers who created the will to identify whether they hold a copy of the will. Most solicitors will offer to store wills that they have written securely for free. If you know the deceased used a particular solicitor, but they didn’t write their will, you should still get in touch as many solicitors will also offer a paid will storage service.

Many solicitors and will writers these days will register wills on the National Will Register. These registers don’t hold a copy of the will but instead record where the will is being kept, so it should be able to be found. 

If none of these parties have the will, some people choose to store their wills with other trusted professionals, such as accountants or even in a bank.

Failing all of the above, if a will cannot be found whatsoever, the deceased’s estate will need to be treated as though they had no will, and follow the intestacy rules.

Q: What should I do if there’s a trust in the will?

A: Trusts are a highly bespoke and complex part of the law which enable the safekeeping of money and assets by a trustee. In 90% of cases, trusts will have been incorporated into a will by a trusts solicitor to ensure that they have been worded properly. If the will advises that a trust needs to be set up on death, we would advise that you seek advice from a proficient probate or trusts solicitor to clarify what the next steps are.

If you fail to set up a trust properly, you could face action from whoever the beneficiary of the trust is.

Q: Can I or anyone else contest the deceased’s will?

A: Yes. If you were excluded either accidentally or on purpose from someone’s will, you may be able to contest the will and say that you should have received something from the estate, but it’s not guaranteed. There are a variety of grounds on which you can contest a will, but there will need to be a robust case as it is rare the court will rule against someone’s final wishes. In short, overturning someone’s will is hard and you will need legal advice.

There are a total of 5 possible grounds on which to contest a will, but the 2 most commonly used are:

1. The will raises concerns of validity. Validity is where the contents of the will does not accurately portray the deceased’s wishes. Worries of validity could come in the form of forgery, execution (whether the will was signed and witnessed correctly) and if the will was completed when the deceased was not of sound mind.

2. The will did not make reasonable provision for your needs as a dependant of the testator.

Our page on contesting a will has full details.

Q: What happens if a beneficiary of the will died before the deceased?

A: Normally, if one or more of the beneficiaries of the will is deceased, any inheritance they were due to have under the terms of the deceased’s will will pass to their own estate. This can lead to situations where the beneficiaries of the deceased beneficiary will need to value an inheritance that has not yet been passed down.

Q: What happens if there’s inheritance tax to pay?

 A: If there’s inheritance tax to pay, you will first need to identify everything in the estate, which includes all property, possessions, money and intangible assets like shares and, in this day and age, digital assets if applicable. Once identified, you will also need to value the estate. HMRC will then require a report on the combined value of the estate. 

Inheritance tax must be paid within 6 months of the deceased passing, otherwise you will face penalties and interest by HMRC.

Q: What if I can’t afford to pay the inheritance tax?

 A: Inheritance tax doesn’t have to be paid by the executor of an estate. Instead, the wealth contained within the estate itself can be used to pay the taxes due. If there are insufficient funds available to pay inheritance tax, assets, like property, can be sold in order to fulfil any tax obligations.

The executor can choose to pay inheritance tax and be reimbursed from the deceased’s estate once a grant of probate has been approved.

Some executors choose to take out a short term bridging loan if they don’t have the funds to pay inheritance tax, however you should be mindful of interest rates if the amount required is large.

Q: What is a grant of probate?

A: You must apply for a grant of probate (or letters of administration if there is no will) before you can distribute the deceased’s estate. Most of the probate process is spent ensuring everything is correct in order to successfully receive a grant of probate.

For this, you’ll need to have identified and valued the estate, calculated and paid any inheritance tax due and found all the beneficiaries of the will. You’ll then be required to provide all relevant paperwork and sign a statement of truth, formally declaring all the information you provided is accurate.

If your application succeeds, you’ll receive a stamp of approval by the probate registry allowing you to distribute the deceased’s assets.

Q: How long does it take to get a grant of probate?

A: While the whole probate process takes around 6 to 9 months from start to finish, this includes everything from registering the death to getting the deceased’s financial affairs in order.

Once this is done and you have submitted your application, it will typically take around 3 to 4 weeks to receive your grant of probate stamped with approval.

Q: How do I apply for the grant of probate?

A: You will either need to instruct a solicitor to help with your probate or fill out a PA1P form including all the documentation required and submit this to Her Majesty’s Court and Tribunal Services (HMCTS).

There’s a long list of things you’ll need to do before your grant of probate is approved, but a full checklist is included on the first page of the PA1P form itself.

Q: Do I need to do anything after getting a grant of probate?

A: Lots. Once the grant of probate has been approved, the executor will need to gather and then distribute all of the assets identified when submitting the grant of probate application in line with the will.

If there is any money to be transferred, the executor will need to set up a separate bank account for this to be placed in rather than have it go to their personal account. Normally the bank of the deceased will release their monies immediately, but they’ll need to receive an approved copy of the grant of probate to do so.

The executor will also need to set up a notice in the London Gazette where any creditors to the deceased will have the opportunity to come forward to claim what’s owed to them. This is an important step as the executor could be held personally liable for any outstanding debts if they fail to do this.

Once all of this is done, the executor can begin distributing assets to the beneficiaries and creditors.

The executor needs to ensure they keep all the supporting accounting paperwork for a minimum of 12 years, as anyone who wants to contest the estate can still do so before 12 years have passed.

Q: Can I give up my role as executor of a will?

A: As long as you have not started the probate process, you can renounce your executorship. There are a number of reasons people choose to do this, including:

  • Feeling overwhelmed by a particularly complex or insolvent estate
  • You’re no longer in the country or expect to be away for a long period of time
  • Not knowing you were named as the executor of a will
  • You simply want to ensure it is done correctly

You should be mindful not to ignore your duties as an executor as there can be financial repercussions for this. If you don’t want to be an executor, you should seek the help of a solicitor or, if there are other executors named, sign a notice of power reserved to allow them to continue with their duties on your behalf.