What is Probate and do I need it?
You may have heard the word “probate” before, but not be entirely sure what it means. You will usually have heard someone mention it after someone has passed away. Here, we will explain what it means, and whether you will need to apply for Probate. The process differs for executors named in a will, or administrators if no will exists.
What is Probate?
Probate is short for a document called a Grant of Probate. This is the Court document naming the executors of a will. It authorises the executors to deal with the estate, such as closing bank accounts, and selling investments or property. The requirements for needing Probate, and the process involved, is different in every country. Here, we will discuss Probate for a person who died and had assets in England and Wales.
Sometimes, there is no valid will, or no executor was named in the will. In this situation, the Court document is referred to as a Grant of Letters of Administration.
When Probate is usually needed
The most common reasons for needing Probate are as follows:
- The person who has died owned a property in their sole name
- Their bank accounts held amounts over a certain limit (typically anywhere between £5,000 and £100,000)
- They held shares or investments in their sole name.
Most financial organisations have specialist bereavement departments whom you can contact to find out their limit for needing Probate. You can typically telephone them, or check their website’s bereavement page for details of their limit for releasing monies.
Probate may also be asked for if there are any disputes in the estate. Common disputes may involve a disagreement between beneficiaries, or someone making a claim against the estate.
Why it may not be needed
Often, Probate is not required, as the deceased held all assets (property, bank accounts, etc) jointly with another person. By doing so, the co-owner of these assets will automatically inherit these once the first person has passed away. This is known as the right of survivorship.
If a property is held in joint names, you should check the type of joint ownership. Probate may still be required if the property is held as Tenants in Common.
Property held as tenants in common needs to be dealt with under the will, or under the intestacy rules. Probate is usually required when property is held in this way.
My loved one left a Will. Do I still need Probate?
A will is different to a Grant of Probate. A will sets out someone’s wishes for who they want to leave their assets to when they die. The will usually names one or more people to deal with the estate, known as executors. Executors can still deal with many of the assets by showing the will to banks or building societies, etc. For more valuable assets, such as substantial bank accounts, property, or shares, Probate may be needed.
The Grant of Probate is the Court document which gives the executors authority to sell or transfer assets. The executors must transfer these assets or pay monies to the person who is entitled under the will.
How long does it take to get Probate?
The current timescale for receiving Probate is 16 weeks, although some Grants are issued much sooner. This timescale is advised by the Probate Registry, and starts once an application for a Grant has been submitted.
You can find out the current timescale by visiting the Government website.
How do I apply?
Yes, you do not need to go to a Solicitor to apply for Probate. You can apply yourself directly with the Probate Registry online. In some cases, you will need to apply by post. Guidance on the steps which you will need to take can be found here.
What happens if I don’t get Probate?
You may find that you cannot sell or transfer some of the assets in the estate without the Grant of Probate. The length of time which it currently takes to obtain this, can cause difficulties in selling assets, especially property. For instance, a buyer may withdraw from a property purchase if they cannot wait until Probate is granted.
Applying for Probate before marketing any property for sale is advisable to avoid these delays.
Do I need to pay any inheritance tax before I apply?
Before you can apply, you must pay any Inheritance Tax due by the estate in full. Sometimes, there are not enough cash assets available to do this, and property in the estate will need to be sold. In this situation, you may also have the option of paying some or all of the tax in instalments. You can arrange this with HMRC when you complete and submit the Inheritance Tax forms.
If there is Inheritance Tax to pay, you will need an IHT reference number. This will need to be included in all forms which you complete and send to HMRC.
You can apply for a reference number online from HMRC here: Inheritance Tax reference request
You should apply for this reference number at least three weeks before you need to pay any inheritance tax.
If you are unsure whether you need to pay any Inheritance Tax, you can read our guide to Inheritance Tax here. Further help is available from the HMRC Inheritance Tax helpline. You can telephone them on 0300 123 1072.
How can I find out if a Grant was obtained for someone who passed away years ago?
If you need to find out if a Grant of Probate was obtained in the estate of someone who passed away some time ago, you can search the online records via the Gov.uk website here. You can use this service to find out if a Grant was issued, the type of Grant issued, and to order a copy online. You can also order a copy of the person’s will, if one is available.
The information provided in this guidance is up-to-date as at September 2023 and will be updated periodically.