Joint tenants vs tenants in common
Joint tenants own property equally together and as a whole, with no distinction over who owns how much of the property. This means that when one owner dies, their share automatically passes to the surviving owner.
Tenants in common each own a percentage of the property and therefore decide who will inherit their share by expressing this in their will. If there is no will, then the deceased person’s share of the property is distributed according to the rules of intestacy.
If the property was owned as tenants in common where the owners of the property own a defined share of the property then probate may be required but again, not always, particularly if the other tenant in common was a spouse or civil partner.
If the property is to be sold and transferred to beneficiaries, probate will be required because a personal representative will need to apply for probate to have the legal right to sell or transfer the property.
Who needs to apply for probate?
Named executors in the will need to apply for a grant of probate. If there is no will, the application is made by the closest living relative for letters of administration.
Both the grant of probate and letters of administration are the legal documents you need to gain the authority to distribute the estate to the entitled beneficiaries named in the will or, in the case of no valid will, to the beneficiaries stipulated by the rules of intestacy.
The process of obtaining probate
The first step in the process of getting probate is to check if probate is required? If you are uncertain you can always book a free probate consultation with a probate solicitor to ask the question “Do I need Probate?”. In fact, this is the question that led to the creation of The Probate Network.
If it is needed for the estate, you must then establish if there is inheritance tax to pay or not. You do this by estimating the value of the estate to ascertain if the value of the total estate is over the inheritance tax threshold.
If there is inheritance tax to pay it usually needs to be paid before the grant of probate or letters of administration are issued. The Executor or Administrator are expected to pay the inheritance tax but they can claim back any tax paid from the estate. Inheritance Tax bills can be extremely high, so for the Executors or Administrators that don’t have the funds to pay may be able to negotiate a payment plan or deferred payment with HMRC or, they can consider a probate loan.
Time and cost involved
For straightforward estates, it takes approximately 8-16 weeks to get a grant of probate or letters of administration to enable the estate administration to get underway. To complete the probate process can take many months or even years, depending on the complexity of the estate.
Please note: The Probate Registry are currently experiencing long delays and the current timescales for issue a grant of probate or letters of administration are much longer.
In England and Wales, for estates worth less than £5,000 there are no fees to pay to apply for probate. Estates valued over £5,000 have an application fee of £273 for probate.
In Northern Ireland, there is no fee for estates valued less than £10,000. For those over this threshold, it costs £261 to apply for probate.
Please note: These costs were correct at the time of publication (March) 2023. Current probate fee rates are always published on Gov.uk
Some people choose to handle the probate application and estate administration themselves while others use the services of a specialist probate solicitor to ensure everything is done efficiently and compliantly. As a guide, probate solicitors tend to offer three payment options –fixed fee probate, an hourly rate or a percentage fee based on the estate’s value. Whichever they offer, they should always provide an indication of probate costs before work commences. If you would like an indication of probate costs, you can complete a simple online for to receive a written probate quote.
Additional costs of probate
In addition to the probate fee, inheritance tax and professional fees you may encounter other probate costs including capital gains tax, probate insurance costs and funeral costs. More information can be found in our article probate costs.
When is probate not required?
Probate is usually not required if the deceased person owned assets and property in joint names or the value of their estate is less than £5,000.
As discussed above if property is owned as joint tenants, the property would automatically pass to the surviving owner and probate would not be required for this.
Probate is often not required when the deceased individual only had savings or owned shares with a relatively low value. Some share companies allow these to be dealt with via a small estates form especially if the transfer of shares is to a surviving spouse.
Assets held in a trust do not normally require probate.
Do I need a solicitor for probate?
You can choose to apply for probate and handle the estate administration without the help of a legal professional. However, using a solicitor for probate will save you time and worry by ensuring everything is submitted when it should be, probate forms are correctly filled in, and the whole process is completed in the most efficient and legally compliant way possible. If you do complete the probate without professional assistance you need to be aware of the risks of being an Executor or Administrator.
Specialist solicitors have the knowledge and experience to handle even the most complex of estates, and are able to take care of every aspect of the probate process including valuing the estate and making inheritance tax payments if the estate is liable