What is Probate?

Probate is the legal process of dealing with someone’s money, property and possessions after they die. If you have been named as an executor, or you are the next of kin of someone who has died without a will, probate is the step that gives you the legal authority to settle their affairs. This guide explains what probate means, when it is needed, what the process involves, and where it tends to go wrong. It covers England and Wales.

What is probate?

Probate is the court-supervised process by which a deceased person’s estate is gathered in, their debts and taxes are paid, and the remainder is passed to whoever is entitled to it. In England and Wales it is handled by the Probate Service, part of HM Courts and Tribunals Service.

Probate meaning: two senses of the same word

The word probate is used in two slightly different ways, which is a common source of confusion.

In everyday use, probate means the whole process of administering a deceased person’s estate: valuing what they owned, paying their debts and taxes, and passing what is left to the people entitled to it. In its narrower legal sense, probate refers to the grant itself, the court document that proves an executor’s authority to act.

Both meanings are correct. When someone asks “do I need probate?”, they usually mean the grant. When someone says “we are going through probate”, they mean the process.

The deceased’s property, money and possessions are together called their estate. That might be a large estate with several properties, investments and substantial savings, or a modest one with a single bank account and some personal belongings. The process is the same in principle either way, though the work involved is very different.

Probate where there is a valid will

Where the person left a valid will, it names one or more executors. Their first task is to apply for a grant of probate, the legal document that confirms their authority to finalise the deceased’s affairs. The will also sets out who inherits, and the executors must distribute the estate in line with it.

Executors are often beneficiaries themselves, which is both common and perfectly lawful. They can also be professionals, such as a probate solicitor named in the will.

Probate where there is no valid will

If there is no will at all, or the will is found to be invalid, the person is said to have died intestate and the whole estate passes under the rules of intestacy. That is a fixed statutory order of inheritance which prioritises a surviving spouse or civil partner, then children, then other blood relatives.

A valid will that only deals with part of the estate produces a partial intestacy instead. The will still governs what it covers, the executor still takes a grant of probate, and only the undisposed-of remainder falls under the intestacy rules.

The practical consequences catch people out. Unmarried partners, stepchildren who were never legally adopted, and friends have no automatic right to inherit under those rules, however long the relationship lasted. We set the order out in full in our guide to the intestacy rules.

Where there is no will, the person with the best right to act, usually the next of kin, applies for letters of administration instead of a grant of probate. They are then called the administrator rather than the executor.

Grant of probate or letters of administration?

The two documents do the same job. Each proves to banks, insurers, the Land Registry and anyone else holding the deceased’s assets that the person named on it has the legal authority to deal with the estate.

The difference is how the authority arises. A grant of probate is issued to an executor appointed by a valid will. Letters of administration are issued where there is no will, or where the will names no executor who is able and willing to act. A third variation, letters of administration with the will annexed, covers the case where there is a valid will but no available executor, so the estate is administered by someone else according to the will’s terms.

Collectively these documents are known as grants of representation, and people often refer to all of them loosely as “probate”.

Is probate always required?

No. Whether you need a grant depends on what the person owned and how they owned it, not on the overall size of the estate.

Probate is normally needed where the deceased owned property in their sole name, or held significant assets that an institution will not release without seeing a grant.

Joint ownership is where this is most often misunderstood, and the form of co-ownership decides the answer. Assets held as joint tenants, which includes most homes and accounts owned by married couples and civil partners, pass automatically to the surviving owner by survivorship and fall outside the will entirely. Assets held as tenants in common do not. There, each owner has a distinct share which passes under their will or the intestacy rules, so a grant is usually needed even though the asset was jointly owned. Tenancy in common is routine for second marriages, unmarried couples and anyone who has severed a joint tenancy, so it is worth checking the title rather than assuming.

For assets in the deceased’s sole name, there is no general statutory threshold governing banks and building societies. Each institution sets its own small estate limit, below which it will release funds without a grant, and those limits are entirely at its discretion. They vary widely, often quoted somewhere in the region of £5,000 to £50,000, but the only reliable approach is to ask each organisation directly what it requires. A narrow statutory exception does exist for certain funds under the Administration of Estates (Small Payments) Act 1965, which sets a £5,000 limit for things like friendly society funds and some public sector pensions, but it does not apply to ordinary bank accounts.

We look at this in more detail in when is probate required in the UK.

What does an executor actually do?

The duties of an executor are wide-ranging and may include:

• Arranging the funeral
• Notifying everyone who needs to know about the death, from the GP and utility providers to HMRC
• Identifying and valuing everything in the estate, and identifying its debts
• Completing the probate forms and any inheritance tax account
• Opening a bank account in the name of the estate
• Finalising the deceased’s tax affairs, including any inheritance tax due
• Applying for the grant of probate
• Identifying and tracing the beneficiaries
• Selling or transferring probate property
• Closing accounts and settling outstanding debts
• Selling or transferring stocks and shares owned by the deceased
• Distributing or disposing of personal possessions
• Preparing estate accounts and distributing what remains

This is not an exhaustive list, and not all of it will apply, because every estate is different.

The probate process step by step

In England and Wales, applications are handled by HM Courts and Tribunals Service through the Probate Service, still widely referred to as the Probate Registry. The process runs broadly as follows.

• Establish what the estate contains. Identify every asset and every liability, including property, bank accounts, investments, pensions, life policies, personal possessions, mortgages, loans and unpaid bills.
• Value the estate as at the date of death. This figure determines whether inheritance tax is due and what has to be reported, so accuracy matters.
• Deal with inheritance tax. Any tax that is payable before the grant must be paid, or arrangements made, at this stage.
• Apply for the grant. The application goes to the Probate Service with the original will and the relevant fee. A death certificate is not usually needed for a death registered in England or Wales, because you supply the registration details instead, but it is required where the death occurred abroad or where a coroner has issued an interim certificate.
• Collect in the estate. Once the grant is issued, the executor sends copies to each institution and the assets are released.
• Pay the debts, then distribute. Debts, expenses and any remaining tax are settled first. Only then is the balance paid to the beneficiaries under the will or the intestacy rules.

How long this takes varies enormously. GOV.UK says the grant itself usually arrives within 12 weeks of a complete application being submitted, and where an IHT400 is needed you must wait for HMRC to issue a unique code first, normally within 20 working days of receiving the account or the tax payment, whichever is later. Collecting in and distributing the estate then adds further months, and a property sale, a tax enquiry or a dispute can extend it well beyond a year.

Valuing the estate and inheritance tax

Valuing the estate accurately is one of the most important parts of the job, because incorrect valuations can lead to penalties as well as delay.

Inheritance tax is charged at 40% on the value of an estate above the available threshold. A reduced rate of 36% applies where at least 10% of the net estate passes to charity. The nil-rate band is £325,000 per person. Where the family home passes to direct descendants, a residence nil-rate band of up to £175,000 may also be available. Both are frozen until 5 April 2031.

The threshold for a particular estate is often higher than £325,000. Where the deceased survived a spouse or civil partner, any unused proportion of that person’s nil-rate band can be transferred, taking the combined threshold to as much as £650,000. A couple can reach £1 million only if both residence nil-rate bands are also available, which requires a qualifying home to pass to direct descendants and the estate to sit below the £2 million taper threshold. Above £2 million the residence nil-rate band is withdrawn by £1 for every £2 of excess, so larger estates lose it altogether.

Neither transfer happens by itself. The executors have to claim the unused nil-rate band, generally within two years of the end of the month in which the second death occurred. A number of exemptions and reliefs can reduce the bill further.

What has to be reported changed for deaths on or after 1 January 2022, when the old IHT205 form was abolished. If the estate qualifies as an excepted estate, the figures go directly into the probate application and no separate account is needed. Otherwise the full IHT400 account is required, and this is where executors often trip up: an IHT400 is needed whenever the estate falls outside the excepted estate limits, which can include estates with no tax to pay at all, such as a large estate passing entirely to a surviving spouse.

Where tax is payable, you normally have to start paying it before the grant is issued. That does not always mean paying it all: tax on property, business assets and certain other qualifying assets can be spread over ten annual instalments, so only the non-instalment element needs settling up front.

Where probate goes wrong

Several problems come up repeatedly.

Difficult valuations. Property, shares in a private company, agricultural land and unusual chattels are all hard to value, and the figure drives the tax.

Debts and the order of payment. Debts must be paid from the estate before anything reaches the beneficiaries, and there is a statutory order for which assets are used and which creditors are paid first. That order applies to solvent estates as well as insolvent ones, and it tightens considerably where the estate cannot meet its debts in full. Paying the wrong person first leaves the executor personally liable for the shortfall.

Missing or unknown beneficiaries. Distributing without tracing everyone entitled leaves the executor exposed to a later claim.

Disputes. A will may be challenged on grounds such as the testator’s mental capacity, undue influence or improper execution. Separately, certain people can bring a claim under the Inheritance (Provision for Family and Dependants) Act 1975 if the will or the intestacy rules fail to make reasonable financial provision for them. That claim must normally be brought within six months of the grant being issued, which is why cautious executors wait until that window has closed before distributing. Either route can delay distribution substantially and may need advice from a contentious probate solicitor.

Can I do probate myself?

Yes. There is no requirement to instruct a professional, and many people administer a simple estate themselves using the online service on GOV.UK.

Before committing, understand what you are taking on. Probate law is detailed, the work is time-consuming, and there are real risks in acting as an executor. If mistakes are made you can be held personally liable, even for genuine ones.

Professional advice is worth taking where:

• the validity of the will is in doubt
• someone who was financially dependent on the deceased has been left out
• the estate includes assets held in trust
• the estate is, or may be, insolvent
• there is foreign property, or the deceased was domiciled outside the UK, in which case you may need to reseal a grant of probate
• a business or agricultural property is involved
• beneficiaries are hard to identify or trace
• relations between the beneficiaries are already strained

Getting help with probate

Costs vary widely between firms, and for the same estate, which is why it is worth comparing before you instruct anyone. Our guide to what solicitors charge for probate explains how the fees are usually structured.

The Probate Network puts you in touch with regulated probate professionals who deal with estates every day. Tell us about your situation and you can compare quotes from three probate solicitors, so you can weigh up cost and service against what your estate actually needs.

Frequently asked questions

What is the definition of probate?

Probate is the legal process of administering the estate of someone who has died: valuing their assets, settling their debts and taxes, and distributing what is left to the people entitled to it. The word is also used more narrowly to mean the grant of probate itself, the court document that proves an executor’s authority to deal with the estate.

What does probate mean in the UK?

It means the same thing across the UK, but the procedure and the terminology differ. England and Wales, covered in this article, and Northern Ireland issue grants of probate and letters of administration. Scotland has a separate system, where the equivalent document is called confirmation and is obtained through the sheriff court.

How long does probate take?

GOV.UK says you will usually receive the grant within 12 weeks of submitting a complete application, and that is only one step of the process. Where an IHT400 is required you must first wait for HMRC to issue a unique code, normally within 20 working days. Collecting in the assets, selling a property, settling the tax position, tracing a beneficiary or dealing with a dispute can each add further months, so a year or more is not unusual for anything other than a simple estate.

Do I need probate if there is a will?

Often, but not always. A will names the executor, but it does not by itself give them authority that banks and the Land Registry will accept. Whether a grant is needed depends on what the deceased owned and how it was held. Sole-name property almost always requires one. Assets held as joint tenants pass to the surviving owner without a grant, but assets held as tenants in common do not, so check how any jointly owned property was actually held.

Who is entitled to apply for probate?

Where there is a valid will, the executors named in it. Where there is no will, or no executor able and willing to act, the right to apply follows a strict statutory order, starting with the spouse or civil partner, then children, then other relatives. No more than four people can be named on a grant. Usually one applicant is enough, but there is an important exception: where a beneficiary is a minor or the will or intestacy creates a life interest, a grant of administration must be made to at least two individuals or to a trust corporation. That catches a great many intestacies involving young children.

What happens if you do not apply for probate?

The estate stays frozen. Property cannot be sold or transferred, accounts cannot be closed and beneficiaries cannot be paid. There is no fixed deadline for applying, but inheritance tax is normally due by the end of the sixth month after the death and interest runs on anything unpaid after that, so delay has a direct cost.

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.