Jan 2023

What Is Probate and How Does It Work?


What is Probate?

Probate is defined as the legal right to deal with a person's property, money and other assets (known as a person's 'estate'), when they pass away.

Common Myths

  • There is often a widely-held assumption that if you have a will in place, then there is no need for probate. This couldn't be further from the truth. Probate is less about having a will in place and more about what assets you have in your possession.
  • Sometimes, the nomenclature of 'probate' gets used for ease of reference. But it's worth understanding that probate isn’t just a single event. You should view it as an entire process in its own right, the culmination of which is a document of vital importance that’s required in order for you to manage a deceased person's estate.

Grant of Probate

  • A "grant of probate' is a certificate issued by the government that allows the executor of the will to carry out any requests specified by the deceased individual in their will in terms of managing their estate and distributing the deceased individual's assets.
  • If you happen to be the executor of a will (this may be more than one person), you will be responsible for dealing with the process of probate.

Asset Thresholds

The government stipulates that in order to apply for probate (or a letter of administration in the case where there is no will), the deceased person should hold a threshold of £5,000 in assets.

HOWEVER, you should be aware that other institutions set their own threshold. For example, a bank might set the threshold at £50,000. In other words, if the deceased person has a balance of £10,000 in their account, then the bank may not require a grant of probate (or letter of administration).

On the other hand, an institution like Land Registry requires a grant of probate for anything of value, even if the value is one pence.

Here's a Quick Guide on Probate

1. Assets + Will? Probate Required. Things Go Smoothly

If you have assets and a will in place (testate), the executor can then apply for grant of probate. Typically it takes between 4-8 weeks for the grant of probate to be issued. In this scenario, expect things to generally go smoothly.

2. No Assets + Will? No Probate Required. Minor Roadblocks

If you don't have that many assets, but still have a will, no probate is required. However, expect some necessary notifications (this is very vague. How so?)

3. Assets + No Will? = Probate Required. Some Roadblocks

If you have assets but don't have a will in place (intestate) the next of kin or the executor can still apply for a letter of administration. However, you may face additional hassle when it comes to determining where your assets go, since you need to follow the rules of intestacy regarding who receives what assets. Additional documentation such as proof of relationship is often required. In addition, trying to understand who should be handling everything can be challenging, especially in blended and/or estranged families.

4. No Assets + No Will? No Probate Required. Minor Roadblocks

+ still need to do a lot of the requisite notifications. Gee thanks.

Who Applies for Probate?

  • The individual(s) dealing with the estate of the deceased individual is called the 'executor' or 'administrator'. This is the person who is named in the will as responsible for dealing with the estate, applying for probate, and distributing assets.
  • The executor must apply for a special authority before they can deal with the estate and distribute any assets.

How Does Probate Work?

No two probate cases are ever the same. However, this is typically how the probate process works:

a. Grant of Probate Pre-Application Phase

  • Once the death of the deceased person has been registered and before you do anything else, you'll need to obtain a copy of the deceased person's death certificate in order to manage their assets.
  • You'll then need to ensure that the deceased individual already has a will in place and the named executor(s) is/are the person(s) who will be carrying out the process of probate hereafter.
  • You need to be aware that the executor alone can be involved with the probate process.
  • After that, you could be communicating a lot with a number of entities associated with the deceased person - for example, financial institutions, government institutions, businesses, etc. So it's vital you gain a clear understanding of the deceased individual's estate and assets in order to ensure seamless communication and speed up the process.
  • It's also important to gain a full understanding of the valuation of assets as you'll need to submit an inheritance tax return (IHT). See (b) below.
  • Also, before applying for a grant of probate, it's useful to bear in mind that a grant of probate depends on the complexity of the estate as well as the individual requirements of each organisation or entity you are communicating with.

b. Grant of Probate Application Phase:

  • Once you've ticked off the steps above, you're ready to apply for a grant of probate.
  • Be aware that sometimes probate gets delayed due to an issue related to the will, an executor or personal representative dies before taking out the grant or after the grant has been obtained, an inheritance tax issue, litigation, tracking down heirs to the estate, or a delay caused by a third party. It's essential you keep the potential of any delay to a minimum. For more information on this, please refer to our FAQ: 'Why has my probate been delayed?'
  • You'll also need to submit an inheritance tax return (IHT) is also required at this stage, so hopefully you'll have familiarised yourself with the valuation of assets as indicated above.

c. Receipt of Grant of Probate:

  • Once you receive the grant of probate, send a copy to any relevant party so that you're able to gain full access to relevant assets.
  • If there isn't a will in place, the rules of intestacy apply. The rules of intestacy then decides how the estate will be shared out, not the wishes expressed in the will.
  • Where a will is not in place the Intestacy Rules will provide the guidance on what is required.
  • If there are any outstanding debts, you may not gain full control of any relevant assets until the debts are paid off first.
  • Once you have full control of all relevant assets, you'll be able to administer and manage them in line with what was specified in the will.

Need to know more?

Probate can sometimes be a complicated process, so why not book a callback and we'd be happy to arrange a no-cost, no-obligation discussion with you to lay out the different options available to you.