What is probate and how does it work?
6 min read
Probate is the legal process to sort out the estate of a person who has died. Read to find out what probate is, when you need it, and the probate process.
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What is probate?
Probate is the legal process you go through to consolidate the estate and assets, e.g. property, money and possessions, of a person who has died. The probate process proves that a will is valid (if there was one), and names the executor of the will. After a person’s death, you will need to go through the probate process before you can start sorting their assets.
Find out more information about selling a house in probate.
What is a grant of probate?
If the person that passed away had a will, you will receive a grant of probate. This is a legal document that proves you have the authority to deal with their estate and assets. If there wasn’t a will, instead of receiving a grant of probate, you will get a grant of letters of administration, which provides the same authority.
What is the probate process?
The probate process is usually complex, involving a lot of legal and financial work. This can be extremely overwhelming, and, if done incorrectly, can have major tax implications. Because of this, it’s often advised that you instruct a solicitor to help you navigate you through the following steps of the probate process:
Identify assets and liabilities
The first step before applying for probate is to calculate the value of the estate. To do this, you or your solicitor will need to identify what assets the person had in their name, including properties, shares, investments and possessions as well as identifying any liabilities they may have had, for example any outstanding bills or loans.
Apply for probate
Once you have identified the assets you can apply for probate. You will not always need probate, so be sure to check this before applying - see below for when you don’t need probate. If you do need to apply for probate, there are only certain people that can do so. If there was a will, then the named executor can apply for a grant of probate, if there wasn’t a will, then the next of kin can apply for a grant of letters of administration, or you can instruct a solicitor to do it on your behalf.
Pay inheritance tax
If the value of the estate is over £325,000 you will have inheritance tax to pay. At this stage, you or your solicitor will have to complete an inheritance tax return and pay the amount due.
Prepare estate accounts and final balance
During this stage of the probate process, you will sell any unwanted assets or belongings of the deceased and settle any liabilities. You would also pay any final administration expenses and calculate any further tax due to or from the HMRC to the estate, such as Income Tax, or Capital Gains Tax.
Distribute the final balance of the estate
The probate process ends when the remaining assets and final balance of the estate is transferred amongst the beneficiaries, either as outlined in the will or in line with the rules of intestacy.
When is probate required?
Since probate is not always required, we have outlined the key requirements below:
When do you need probate
If the property was either solely in their name or owned as a tenant in common – if any property was as beneficial joint tenants, ownership will automatically go to the other owner/s, however, if not, you will need probate to sell or transfer ownership.
There are large value assets solely in their name – whether this is money kept in a bank or stocks and shares, you’ll need probate to access and release these assets.
When don’t you need probate
The estate is only made up of cash – this also includes personal possessions that are owned outright, for example, cars, jewellery, and furniture.
The estate is insolvent – if when identifying the assets and liabilities, you discover there are not enough assets to pay off the liabilities (including debts, taxes and expenses), this is known as insolvency and you will not need to apply for probate.
If there is property, however the property is owned as beneficial joint tenants rather than tenants in common – if this is the case, the property automatically gives full ownership to the other owner/s.
Any money is kept in a joint bank account – this automatically remains with the surviving partner.
The estate is small and there was no property – some banks, building societies, pension accounts do not require probate if the amount kept within is small (. This is all dependent on each company though, so be sure to check the rules with each of them individually.
The deceased took out certain policies on their estate, this could include things such as equity release, of life insurance.
How long does probate take?
Typically, it takes around a year for the probate process to complete (from a person’s death to their estate being distributed). It does however depend on the size and complexity of the estate.
If it is a fairly simple case, it could take as little as six months, however, delays can occur if there is property to sell, there are HMRC tax issues or there are disputes between the executor and beneficiaries.
How long does it take to get a grant of probate?
Once you or your solicitor has applied for probate you’ll likely get the grant of probate or grant of letters of administration within 16 weeks. Again, this depends on the size and complexity of the estate, and it could take longer than this if you need to provide additional information.
How much does probate cost?
The cost to apply for probate costs £300 for estates over £5,000. Other than this, the main fees to factor in are inheritance tax, if payable (if the estate is over £325,000), and any solicitor fees.
Solicitors often provide varying levels of service when applying for probate, depending on your needs and the size and complexity of the estate, meaning that the cost can vary significantly.
There will be some companies that offer a fixed fee price, which will often be cheaper than companies which ask for a percentage of the estate, so be sure to check with the individual companies and get quotes to compare.
For a standard case (for example there is a will and only one property), you will be looking at paying over £2,000 for solicitor fees.
Probate FAQs
Do you need probate to sell a house?
Yes, you will need probate before you are able to sell a persons’ house after their death. This is because the executor needs to have legal authority over the assets, which is only gained through the probate process.
Find out how to sell a house in probate.
Who can apply for probate?
If there was a will, then the named executor can apply for a grant of probate, if there wasn’t a will, then the next of kin can apply for a grant of letters of administration.
If you are the named executor and you don’t want to oversee the estate yourself, your solicitor can apply for probate on your behalf. Our conveyancing partner can help you through the probate process, find out more about Cook Taylor Woodhouse.
Can you get probate if there’s no will?
You can’t get a grant of probate if there is no will, however, you can apply for a grant of letters of administration which provides you with the legal authority the deal with deceased’s estate and assets.
Do you need probate if there is no will?
You will still need to get legal authority the deal with the estate and assets, therefore you will need to apply for probate still.
How long does probate take without a will?
In England and Wales, probate takes the same amount of time if there is a will or not, roughly a year for a standard case.
How long after probate is granted does it take to receive inheritance?
It usually takes around a year for probate to be granted and for the inheritance to be received. This however can take longer, if the estate is more complex, such as there is one or more property to sell.
How can you track a probate application?
You can track the progress of your probate application through the gov.uk website.
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