What is Probate UK and When is it Needed?
When a person dies, their ‘estate’ usually includes an amount of money, property, and some personal possessions.
As a result, someone [you] will need to have the legal right to deal with the estate on behalf of the deceased person.
Hence, without probate (having the legal right) you should not make any financial plans or try to sell their property.
Note: A guide about the process of applying for probate, and dealing with the estate of someone who’s died, is also available in Welsh language (gwneud cais am brofiant) on the GOV.UK website.
Probate in England and Wales
In most cases, you can apply for a ‘grant of representation’ if you live in England or Wales. It follows the same general procedures as those used when applying for probate.
There are several ways to apply for probate. You can do it yourself or you can use a solicitor. Either you, or the person licensed to provide probate services, will follow the same basic steps:
- Check to see if 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.
- Apply for a ‘grant of representation’ (e.g. a document from the court). 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).
- The next step in the process would be to pay off the Inheritance Tax (if any is due).
- You can then collect the assets and the ‘residue’ of the estate. A typical example might include selling off their property or personal valuables.
- The representative or ‘executor’ should then pay off all the debts of the deceased person. An example would be any unpaid utility bills.
- 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 away 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’.
Checking if You Will Need Probate
There are situations when having to apply for probate may not be necessary. As a general rule, you do not need the document if the estate will (either):
- Not include any land, property, or investment shares.
- Pass to the surviving spouse or the civil partner because it was held in joint names. A typical example would be a joint savings account.
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 (so you can use the death certificate as evidence).
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 the Deceased Person Left 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 or ‘codicil’ (update) 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 (up to a maximum of four). Thus, follow the steps listed in the probate application form along with its associated guidance notes.
There could be other unusual situations that need dealing with. Thus, you should contact your nearest Probate Registry if (either):
- A will exists but there is no executor named in it.
- The will has named executors but none of them are willing or able to apply for the grant of representation.
Note: The Probate Registry explains what you will need to do. It is not mandatory for an executor to get any of the estate (unless named as a beneficiary). Use ‘Form PA13: Lost Will questionnaire‘ if you are unable to find the original.
If the Deceased Did Not Leave a Will
The ‘entitled’ inheritor (closest living relative handling the estate if the deceased person did not leave a will) can apply to become the ‘administrator’. It can be a spouse, a civil partner, or even a child over the age of eighteen (18).
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 Probate in England
There is no legal requirement to use a solicitor when applying for probate. You can do it yourself or you can use any licensed person that provides will and probate services.
If you apply for probate yourself, you must follow these four steps:
- Fill in a probate application form.
- Complete an Inheritance Tax form.
- Send in the application.
- Swear an oath.
Note: You may get the grant quicker by applying online (if there is a will). Another section explains how to report the value of the estate to HMRC if you do not need to pay Inheritance Tax (or it is an excepted estate).
Completing an Inheritance Tax Form
You need to work out how much the dead person’s estate is worth. The value of the estate determines 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.
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.
Note: Sending inaccurate information on the Inheritance Tax form can result in a penalty. As a rule, a certain amount of owed tax needs to be paid before they will issue a grant of representation.
Sending the Application
The application needs to be sent to the local Probate Registry. Remember to include:
- An official copy of the death certificate.
- The probate application form PA1.
- The Inheritance Tax form.
- The original will and three (3) copies along with any codicils (additions or amendments).
- The application fee of £273 (make cheques payable to ‘HM Courts and Tribunals Service’). The cost of making a second application is £20 (e.g. if probate has already been granted).
Note: There is no application fee if the figure is less than £5,000 after valuing the estate of someone who died. Extra copies of the grant are available for £1.50 each. Having extra copies means you can send them to the 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. It is a promise that the information you have given is true and to the best of your knowledge. Swearing can take place at (either):
- A local probate office.
- The office of a commissioner for oaths (e.g. a solicitor).
Note: In most cases, they will send the grant to you through the post within twenty working days of swearing the oath. If they cannot issue a grant, the Probate Service will give you the reasons why not – in writing.
After Probate has been Issued
A copy of the grant needs to be sent 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:
- Follow the instructions as detailed in the will.
- Follow the instructions as detailed by the law if there is no will.
After distributing the estate you can prepare the estate accounts. The accounts need approval 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 might need to pay Income Tax on the income.
How to Stop a Probate Application
It is not uncommon to have a dispute over who can apply for a grant of representation. So for example, someone may be disputing whether a will actually exists.
The legal process of stopping a probate application going ahead in the normal way is officially termed ‘entering a caveat’ (which would last for six 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 £3.
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:
- A signed ‘caveat application form PA8A‘.
- The full name, date of the death, and the last address of the deceased person.
- A registered home address in England or in Wales.
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 property, what happens with it will depend on how they owned it.
Property owned under a ‘joint tenancy’ means the deceased person and 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 would determine who inherits their share. If there is no will then the decision gets taken according to the law.
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 have died since 1858. Any copies of probate records will cost £1.50 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 £1.50 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 extending 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