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Wills and Probate

Wills and Probate Explained

Dealing with the will, probate and inheritance of a deceased person can be complex. This section will help you sort through the affairs of wills and probate after a death.

PROBATE UK: When a person dies their 'estate' can include an amount of money, property, and personal possessions.

That means you are going to need the legal right to deal with the estate of a deceased person.

Probate in England and Wales

In most cases, you can apply for a 'grant of representation' in England and Wales. As a rule, it is the same process as applying for 'probate'.

There are several ways to apply for probate. You can it yourself or you can use a solicitor. Either you, or the person licensed to provide probate services, will follow the same basic steps.

  1. Check to see whether the deceased person left a will. As a rule, death wills state who should sort out or 'execute' the proceeds of the estate. The next of kin can apply to do this if there is no will.
  2. Apply for a 'grant of representation'. This would give you the legal right to gain access to the assets of the estate (e.g. the bank account of the person who died).
  3. The next step in the process would be to pay off the Inheritance Tax if there is any due.
  4. You can then collect the assets and the 'residue' of the estate. A typical example might include selling off their property or personal valuables.
  5. The representative or 'executor' should then pay off all the debts of the deceased person. An example would be any unpaid utility bills.
  6. In most cases, the final step is distributing the estate to all 'beneficiaries' named in the will. One purpose of making a will is to name the people entitled to the assets. This often includes giving money, property, or possessions.

Note: A grant of representation has several other legal titles meaning the same thing. It can also be a 'grant of probate' or 'letters of administration with a will'.

When there is no need for a Grant of Representation

There are situations when a grant of representation may not be necessary. As a rule, you do not need the grant if the estate will either:

You will need to contact whichever organisation holds the money (e.g. the bank or the building society). In most cases, they will ask for some proof of the death. You would usually register a death within five days in England. Thus, you can use the death certificate as proof.

Note: In some cases, you may still need to apply for the grant. The exact rules of different financial institutions vary.

Probate in Scotland and Northern Ireland

The process of dealing with the estate of a deceased person has a different name outside England and Wales. It is better known as 'confirmation' in Scotland and called the 'grant of probate' in Northern Ireland.

If there is a Will

As the 'executor' of the will you would be able to apply for a grant of representation. The executor is the person named in the will with the role of dealing with the assets of the estate.

It is not uncommon for more than one executor to be named in a will. In this case, the steps to follow would be in the probate application form and its guidance notes.

There may be other unusual situations that need dealing with. Contact your nearest Probate Registry if either:

Note: The Probate Registry explains what you will need to do. It is not mandatory for an executor to get any of the estate.

If there is no Will

The person who handles the estate if the deceased did not leave a will is the 'administrator'. As a rule, the next of kin can apply for a grant of representation to become the administrator. The next of kin can be a spouse, a civil partner, or it can be a child.

You can still apply for the grant even if you had separated from the person when they died. But, you must have been either married or in a civil partnership at that time.

So, you must have been the husband, wife, or civil partner when they died to apply for a grant of representation. A 'partner' does not have automatic entitlement to any of the estate.

Note: Intestacy law determines who inherits if someone dies without a will. Laws on cross-border successions vary on inheritance between the EU Member States. Read National inheritance rules in other European Union countries.

How to Apply for a Grant of Representation

There is no legal requirement to use a solicitor when applying for a grant of representation. You can apply yourself or use any licensed person that provides probate services. If you do it yourself you must follow these four steps:

  1. Fill in a probate application form.
  2. Complete an Inheritance Tax form.
  3. Send in the application.
  4. Swear an oath.

Note: You may get the grant quicker by applying online (if there is a will). Contact HM Revenue and Customs to check if you qualify.

Completing a Probate Application Form

When you are ready to complete a probate application you can either:

HMRC Inheritance Tax and Probate
Telephone: 0300 123 1072
Outside UK: +44 300 123 1072
Monday to Friday: 9am to 5pm
Closed weekends and bank holidays.

Note: Use forms C1 and C2 to apply for confirmation if the deceased lived in Scotland.

Completing an Inheritance Tax Form

You will need to work out how much the dead person's estate is worth. The value of the estate will determine whether there is any Inheritance Tax to pay. Even if you think there is no tax owing, you still need to fill in the appropriate Inheritance Tax form.

Note: Sending in inaccurate information on the Inheritance Tax form can result in a penalty. As a rule, a certain amount of owed tax needs paying before they will issue a grant of representation.

You may need to pay the taxes from your own bank account. If so, you will be able to claim it back from either the estate or the beneficiaries.

Sending the Application

The application needs sending to the local Probate Registry. Remember to include:

Note: Extra copies of the grant are available at 50 pence each. Having extra copies means you can send them to different organisations in one go.

Swearing an Oath

You will receive an oath from the probate office as well as the details of how to arrange an appointment. The oath is a promise that the information you have given is true and to the best of your knowledge.

You must swear the oath. But, swearing can take place at either:

Note: In most cases, they will send the grant to you through the post within ten (10) working days of swearing the oath. If they cannot issue a grant, the Probate Service will give you the reasons why not - in writing.

Once the Grant gets Issued

A copy of the grant will need sending to any organisations that hold assets of the deceased person. In most cases, this includes banks and building societies. Once the organisation releases the assets, you can then transfer them into the 'executorship' account.

Paying Off the Debts

Having transferred the assets, you can then pay off any outstanding debts. As a rule, this could include bills for utilities and any tax owed to HM Revenue and Customs.

You should also place a deceased estates notice in The Gazette. Doing so gives creditors an opportunity to claim anything owed to them. It also protects the executor from the responsibility of any debts. You can pay solicitor fees with money from the estate as part of the probate process.

Note: The executor (or administrator) has a legal obligation to pay off any outstanding payments. You must do this before you distribute the residue of the estate.

Distributing the Estate

You can distribute the estate after paying all the outstanding debts and taxes. Thus, you should then:

After distributing the estate you can prepare the estate accounts. The accounts need approving and signing by yourself and by the main beneficiaries in the will.

Note: In some cases, inherited assets can generate income for the beneficiaries. If so, they may need to pay Income Tax on the income.

How to Stop a Grant of Representation

It is not uncommon for there to be a dispute over who can apply for a grant of representation. Someone might also be disputing whether a will actually exists.

There is a way to stop the issuance of a grant of representation. The process of stopping probate going ahead is a caveat and it last for six (6) months.

Entering a Caveat

You will need to be at least 18 years old to submit a caveat. You can either submit one yourself or you can use a solicitor. The cost to enter a caveat is £20.

The caveat must get entered at any Probate Registry, but they do not offer legal advice. You will need to write to them or visit them in person and include:

Bank Accounts and Property

Any bank accounts held by the deceased person will be part of the estate. If there is money kept in a joint bank account it passes to the other owners by automatic process.

You must include this money as part of the estate when working out the Inheritance Tax. If they had any property, what happens with it will depend on how they owned it.

Joint Tenancies

Property owned under a 'joint tenancy' means the deceased person and the co-owner own the whole of the home. Thus, property ownership after a death would pass to the surviving owner. The same process would apply to 'joint owners' in Scotland.

Tenancy in Common

Some people own properties under a 'tenancy in common' agreement. The same thing is 'common owners' in Scotland and 'coparceners' in Northern Ireland. It means two or more people own the home either in equal shares or in a defined percentage.

As a rule, the death will would determine who inherits their share. If there is no will then the decision gets taken according to the law.

Owned Outright

The will (or the law if no will exists) would determine who inherits any property owned outright by the deceased person.

Note: There are several ways of finding out the ownership status of a property. You can contact the mortgage company or check with HM Land Registry. In some cases, you may need to get legal advice to find out. You may also need to update property records when someone dies.

How to Search for Probate Records

There are several ways to search for a probate document in England and Wales. You can either search online or by post to find a will or a grant of representation.

Search a Probate Record Online

An online search can find a will or 'grant of representation' for people who died since 1858. Any copies of probate records will cost £10 each if ordered online. The department will accept payment by debit or credit card.

Note: Allow up to ten (10) working days to receive the documents (excluding UK public holidays and weekends). It takes around 14 days for a new probate record to appear online after a grant of representation got issued.

Search for a Probate Record by Postal Method

You will need form PA1S titled 'Postal search of the Probate records of England and Wales'. You can download the application to perform a postal search of copies of grants and wills. The return mailing address is on the form.

The postal search will cost £10 and usually takes up to four (4) weeks to get a response. It includes a copy of the will (if it exists) and the grant of representation.

How to get a 6 Month Standing Search

The death must have been in the last six months to apply for a six (6) month 'standing search'. Thus, you would get a copy if a grant of representation gets issued in the following six months. There is no problem to extend the standing search at the end of the 6 month period.

Contacting the London Probate Department

The London Probate Department is a storage building for wills. If you contact them they will ask for proof of the death and proof that you are the executor named in the will. Even so, if there were no named executors you still might still be able to get the will.

London Probate Department
Principal Registry of the Family Division (7th Floor)
42-49 High Holborn, First Avenue House
Holborn, London WC1V 6NP

Email: londonprobate@hmcts.gsi.gov.uk
Telephone: 0300 123 1072
Monday to Friday: 10am to 4:30pm
Check the cost of calling 0300 numbers.

Scotland and Northern Ireland

Outside England and Wales you will need to contact the National Records of Scotland and the Public Record Office of Northern Ireland.

Dealing with Wills, Probate, and Inheritance in the United Kingdom