What is probate?
When someone dies, the person dealing with their estate often needs a legal document called a grant of representation before banks and other organisations will release the deceased person's money or allow property to be sold.
If there's a will, the executors named in it usually apply for a grant of probate. If there's no will, or no executor able to act, a close relative usually applies for letters of administration.
A grant isn't always needed. For example, it may not be needed where the estate is small, or where assets were owned jointly and pass automatically to the surviving owner. Each bank or organisation sets its own rules on when it needs to see a grant.
Preparing the papers for a probate application for a fee is a reserved legal activity. LegalBuddha doesn't prepare or submit probate applications, but can explain the general process.
Being an executor
An executor is the person named in a will to deal with the estate. Their role usually includes finding out what the estate is made up of, valuing it, dealing with any tax, applying for the grant, paying the debts, and then distributing what's left according to the will.
Executors can be personally responsible if they make mistakes, for example by paying out to beneficiaries before all debts have been dealt with. For this reason, executors often take steps to identify any unknown creditors before distributing the estate.
If you're named as an executor and don't want to act, you may be able to step aside, but generally only if you haven't already started dealing with the estate.
If there's no will
When someone dies without a valid will, the law decides who inherits their estate. These are known as the rules of intestacy.
In general, a surviving spouse or civil partner and any children inherit first. If there's no spouse, civil partner or children, the estate passes to other relatives in a set order.
An unmarried partner doesn't automatically inherit under these rules, however long the couple lived together. They may be able to make a claim against the estate in some circumstances.
Inheritance Tax
Inheritance Tax may be payable on an estate, depending on its value and who inherits it. There are allowances and exemptions, for example for gifts to a spouse or civil partner, and for certain gifts to charity. Gifts the person made during their lifetime can also be relevant.
Inheritance Tax usually has to be paid within a set time after the death, and interest can be charged on late payment. The rules are detailed and change from time to time, so it's worth checking what applies to the particular estate.
Making a will
For a will to be valid in England and Wales, it generally needs to be in writing and signed by the person making it in the presence of two witnesses, who must also sign it.
A witness, or the spouse or civil partner of a witness, shouldn't inherit under the will, because a gift to them may fail.
Some life events can affect an existing will. In England and Wales, getting married or entering a civil partnership usually cancels an existing will, and divorce can change how the will takes effect. It's sensible to review a will after any major change in circumstances.
Challenging a will or making a claim
A will may be challenged on certain grounds, such as the person not having the mental capacity to make it, being put under undue pressure, or the will not being signed and witnessed properly.
Separately, some family members and dependants can claim that a will, or the intestacy rules, didn't make reasonable financial provision for them. These claims have strict time limits.
Disputes over estates can become complicated and costly, so mediation is often considered before going to court.
Questions for beneficiaries
If you're a beneficiary, it's normal for the estate to take some time to deal with, particularly if property needs to be sold or tax needs to be sorted out. Executors are expected to administer the estate properly and to keep records of what they do.
If you have concerns about how an estate is being handled, raising them with the executors in writing is usually the first step.
Important: time limits and urgent situations
Some claims relating to estates have strict time limits that can start running from the date of the grant. If you think you may need to challenge a will or make a claim, act promptly and don't rely on LegalBuddha if a deadline may be close. Speak to a solicitor.
If you're worried that a grant may be issued before you can raise a concern, there may be steps that can be taken to pause the process, but these need to be dealt with quickly.
Frequently asked questions
Do I always need probate?
Not always. It may not be needed for small estates, or where everything was owned jointly and passes automatically to the surviving owner. Each bank or organisation has its own rules.
What happens if someone dies without a will?
The rules of intestacy decide who inherits. A spouse or civil partner and children usually inherit first, followed by other relatives in a set order.
Does an unmarried partner inherit automatically?
No. An unmarried partner doesn't inherit under the intestacy rules, although they may be able to make a claim against the estate in some circumstances.
Can I refuse to be an executor?
Usually yes, as long as you haven't already started dealing with the estate.
Can a will be challenged?
A will may be challenged on certain grounds, such as lack of mental capacity, undue pressure, or not being signed and witnessed properly. Strict time limits can apply to some claims.
Can LegalBuddha apply for probate for me?
No. Preparing probate application papers for a fee is a reserved legal activity. LegalBuddha provides general legal information only and doesn't prepare or submit probate applications.