When someone dies, their estate may include assets held in a trust. Many people assume that a trust automatically removes the need for probate. That is not always the case.
Whether probate is required depends on the type of trust, how the assets are owned, and whether any property or accounts sit outside the trust. This article explains how trusts interact with probate, when probate is still necessary, and when it is not.
Trusts are a complex area of law. Before making any decisions, consider comparing quotes from three probate solicitors for professional support.
Most probate estates also include assets held outside any trust. For a broader view, read when is probate required in the UK.
For detailed guidance on specific types of trust, see:
- Discretionary trusts
- Life interest trusts
- Bare trusts
- Property protection trusts
- When property is left in a trust in a will
- Probate and the will trust
What is a trust and how does it work?
A trust is a legal arrangement in which one or more people (the trustees) hold assets for the benefit of others (the beneficiaries).
Trusts are commonly used to:
- Protect family assets and inheritance
- Manage property or investments for children who are not yet adults
- Manage inheritance tax exposure, though a trust is not a straightforward way to reduce it and can create charges of its own
- Control when and how beneficiaries receive money
The person who sets up the trust is known as the settlor. The settlor transfers ownership of certain assets into the trust, either during their lifetime or through their Will. Those assets are then legally owned by the trustees, not by the settlor personally.
Because the assets belong to the trust rather than to the deceased, they often sit outside the deceased’s estate. In those circumstances, the trust can simplify administration after death and probate may not be required.
When you do not need probate
You do not need probate for assets held in a trust, because those assets are legally owned by the trustees rather than by the deceased.
Outside probate does not, however, mean outside inheritance tax, and the two are easily confused. Where the deceased held a qualifying interest in possession in a trust, section 49 of the Inheritance Tax Act 1984 treats them as beneficially entitled to the underlying trust property, so it is counted in their estate for inheritance tax even though no grant is needed to deal with it. That covers immediate post-death interests and disabled persons’ interests, which includes many of the life interest and property protection trusts described in our other guides. Gift with reservation of benefit rules can produce the same outcome.
For example, if the deceased created a lifetime trust (also called an inter vivos trust), any property or investments transferred into it remain under the control of the trustees. When the settlor dies, the trustees continue managing those assets according to the trust deed, without applying for probate.
In addition, if the only assets remaining in the deceased’s sole name were jointly owned or of low value, it is often possible to administer the estate without probate. However, each institution sets its own threshold for releasing funds, so always confirm the position with the relevant bank or financial provider.
When probate is still required
Probate is required if the deceased owned assets outside the trust in their sole name.
You will need a Grant of Probate (or Letters of Administration if there is no valid Will) to:
- Access bank accounts, investments, or shares not placed in the trust
- Sell or transfer property owned by the deceased personally
- Pay debts, inheritance tax, or final expenses from estate funds
Even where a trust exists, most estates include at least one asset not covered by it, such as a sole bank account or a vehicle. Those assets form part of the estate and require probate to manage.
Understanding Will trusts
A Will trust (also called a testamentary trust) differs from a lifetime trust because it only takes effect after death.
A will trust comes into existence under the will on death rather than needing a separate act to create it. What the executors need the grant for is to collect in the estate assets and pass them to the trustees, which in practice is what makes the trust operational. The grant gives them authority to:
- Collect estate assets
- Transfer them into the new trust
- Appoint trustees to manage the assets in accordance with the Will
So in practice a grant is almost always needed, because without it the executors cannot get hold of the assets that are meant to fund the trust. The exception is an estate where no asset requires a grant at all.
Why probate can still be beneficial even with a trust
Even where a trust exists, obtaining probate offers several practical benefits:
- Legal clarity: it confirms the executor’s authority to act on behalf of the estate.
- Tax compliance: it supports inheritance tax reporting and HMRC requirements.
- Financial protection: it ensures debts, taxes, and property transfers are handled correctly.
One caveat on liability, because it is widely misstated: a grant confers authority, not protection. What protects a personal representative against a claim from a creditor they did not know about is a notice under section 27 of the Trustee Act 1925, published in The Gazette and, where the estate includes land, a local newspaper.
Registering the trust with HMRC
One duty that catches trustees out has nothing to do with probate: most UK express trusts have to be registered with HMRC through the Trust Registration Service, whether or not there is any tax to pay.
For a trust created by a will, there is a grace period. While the trust holds only property from the estate, it is excluded from registration for two years from the date of death. If it is wound up and distributed within those two years, no registration is needed at all. If it is still running at the two-year point, the trustees have 90 days from that anniversary to register. Two things end the grace period early: taking in property from outside the estate, and a UK tax liability arising in the meantime.
The rules changed on 30 June 2026 under the Money Laundering and Terrorist Financing (Amendment) Regulations 2026. The two-year post-death exclusion now also covers trusts created by a deed of variation and certain co-ownership trusts, which brings them into line with will trusts. A new exclusion was added for very small non-taxable trusts, and non-UK trusts owning UK land were brought further into scope.
Other trusts generally register within 90 days of being created or of becoming registrable, and changes must be reported within 90 days too. The penalty for failing to register is £5,000 per trust, charged at HMRC’s discretion and normally after a warning letter.
Managing estate costs when a trust is involved
Trusts can simplify administration, but costs still arise, particularly where the deceased owned property or had ongoing liabilities outside the trust.
Executors may need to cover:
- Solicitor fees or probate application costs
- Valuations for property or investments
- Insurance for empty property awaiting transfer
Where inheritance tax is the cost in question, check the routes that cost nothing first. HMRC’s Direct Payment Scheme lets participating banks pay the tax straight from the deceased’s accounts before the grant, and tax on land and buildings can be spread over ten annual instalments. Where funds are still tied up, a probate loan can cover short-term costs until assets are released.
Next steps
If you are dealing with an estate that includes a trust:
- Check the trust deed to confirm which assets it covers.
- Identify any remaining assets still held in the deceased’s sole name.
- Contact a probate solicitor to confirm whether probate is needed.
If you are unsure whether probate is required, or how to apply, The Probate Network connects you with experienced SRA-regulated solicitors who can explain your options and help you manage every stage of the process. Where property is involved, check the insurance position early: most home policies restrict cover once a property has been unoccupied for a set period.
Frequently asked questions
Does a trust always avoid probate?
No. A trust only avoids probate for the assets it contains. If the deceased also owned assets in their sole name outside the trust, such as a bank account or property, those assets will generally require probate before they can be accessed or transferred.
What is the difference between a lifetime trust and a Will trust?
A lifetime trust (also called an inter vivos trust) is set up and takes effect during the settlor’s lifetime. Assets transferred into it are owned by the trustees, so probate is not required for them. That is a point about probate, not about inheritance tax: where the deceased had a qualifying interest in possession, the trust property still counts in their estate for inheritance tax. A Will trust, by contrast, is created by the Will itself and comes into existence on death. In practice the executors will still need a grant, because without it they cannot collect in the estate assets that are meant to fund the trust.
Can executors act on trust assets without a Grant of Probate?
No. Executors have authority over the deceased’s estate, not over assets held in a separate trust. Trustees manage trust assets independently, under the terms of the trust deed. If the estate also contains assets outside the trust, the executors will still need to apply for probate to deal with those.
Is professional advice necessary when a trust is involved?
Trusts are a complex area of law, and the interaction between a trust and the probate process depends heavily on the specific circumstances. Professional advice from a solicitor is strongly recommended. You can compare quotes from three probate solicitors through The Probate Network to find the right support.
This article is for general guidance only and does not constitute legal, tax, or financial advice. Rules and thresholds can change and every estate is different. For advice on your own circumstances, speak to a qualified professional. You can book a free legal consultation through The Probate Network.
