What is Probate?

Probate is the legal process that allows someone to deal with a person’s estate after they die. It will depend on whether or not the person has made a Will as to how they will be able to get probate. 

Click below for a free initial consultation with one of our expert solicitors.

How do you get probate? 

There are two possible routes for someone to get probate following another persons’ death: 

• Where the deceased had a Will, those named as executors in the Will get a grant of probate. This is an official document issued by the probate registry that legally allows the executor to deal with the estate of the deceased 

• Where the deceased did not leave a Will, then the people that are applying to deal with the estate will be given letters of administration 

Probate is not needed where assets are owned jointly with someone else (for example, a spouse) since these will automatically pass to the surviving owners. It is also not needed where the person that died only had savings or premium bonds.  

What is the process? 

The process to be followed before applying for probate is as follows: 

• Determine whether or not probate is needed 

• Make sure the person applying for probate is eligible to do so 

• Obtain an estimation of the value of the estate and report this before you apply 

• Confirm whether or not inheritance tax will be due. Usually some of this will need to be paid before probate is granted but it can be reclaimed from the estate afterwards 

• Ensure you have the original Will, if applicable 

For estates valued at more than £5000, there is an application fee for probate. 

Grant of probate or letters of administration are usually granted within four to eight weeks of the documentation being sent, but this can take longer. Once probate has been granted, the executor or administrator is able to then deal with the estate.  

Who deals with probate? 

This will depend on whether or not there is a Will. 

With a valid Will 

In this situation, the executor is able to apply for probate. It is necessary to apply using the original Will- having a photocopy is not sufficient.  

If there is more than one executor, then a decision needs to be made as to who will apply for probate (up to four executors can be named on the application). Where not all the executors are named on the application, then the one applying has to demonstrate an attempt to contact the others before the application was made. 

Without a valid Will 

In this situation, the administrator will deal with the estate. A person that is over the age of 18 years can apply to become the administrator if they are the most “entitled” person to inherit from the deceased’s estate. The most entitled inheritors are relatives in the following order: 

• Spouses of civil partners (including those that are separated) 

• Children (not step-children) 

• Grandchildren then great-grandchildren 

• Parents 

• Siblings 

• Nieces and nephews  

• Half siblings 

• Half nieces and nephews 

• Grandparents 

• Aunts and uncles 

• Cousins 

• Half aunts and uncles 

• Half cousins 

The process is the same as applying for probate but the result will be that the person that applies will receive letters of administration that grant the legal right to deal with the estate. 

Once probate has been granted, the estate will be divided either according to the deceased’s Will. Without a Will this is determined by the intestacy rules. 

Can you contest probate? 

It is possible to contest a Will during the probate process by entering a caveat. This will prevent any getting a grant of probate until the issue has been resolved. There are various reasons why this may happen: 

• The most current Will is not being used 

• There is a mistake in the Will 

• There is a challenge to the Will 

• The beneficiaries have a disagreement with the executor or administrator of the Will 

What happens where a named executor does not wish to act 

There may be situations where an executor does not want to take up the role. In this situation, there may be a replacement executor named in the Will. Where there are no executors that wish to act, the relevant form has to be filled in and sent to HMCTS Probate. 

If someone does not want to act as executor, then they can either give up their right completely or they can reserve the right to apply for probate if another executor does not do it themselves. They can also appoint an attorney to act on their behalf.