In legal terms, probate is the entire process of administering the estate of someone who has died. However, “probate” is often the term used to describe the process of getting a grant of probate, which gives you the right to deal with the estate of the deceased. It’s the process of getting that grant of probate – and discovering if you even need it – that we’re going to explore here.
Before we get started, here are a couple of points to remember:
- You shouldn’t make any financial plans, including distributing the deceased’s money or putting their home up for sale, before you have probate.
- We have produced this guide in line with the probate process in England and Wales. Beware that different probate processes apply in Scotland and Northern Ireland.
How do I get probate?
The only way to get probate is to apply for it.
Before you apply for probate, you should:
- Check if you need it
- Discover if you’re eligible to apply for it
- Create and report an estimate of the value of the deceased’s estate, which will tell you if and how much Inheritance Tax will apply
How to check if probate is needed
Whether you’ll need probate before dealing with the deceased’s estate depends on their circumstances.
You may not need probate if the deceased:
- Had jointly owned assets or cash, because these automatically pass to the surviving owners, assuming they’re a spouse
- Only had savings
If the deceased owned property, land, or other assets with a friend, for example, these would pass on in line with the wishes outlined in their Will or in line with the rules of intestacy should there not be a Will.
The best thing to do is to contact the financial organisations with which the deceased had assets or dealings before their death, including their:
- Mortgage company, if they were a property owner with any outstanding mortgage
- Shares management company or broker
Each organisation will have specific rules around whether they require probate to release the deceased’s assets. For example, if the deceased had under £50,000 in the bank, most banks will release the funds upon production of the death certificate, with no need to provide a grant of probate. In contrast, some shares management companies will ask for a grant of probate even if the share account is holding a nominal sum of investments.
How to check if you can apply for probate
Whether you can apply for probate will depend on if the deceased left a Will and your relationship to the deceased:
- If the deceased left a Will, only the executors named in it can apply for probate.
- If the deceased died intestate (didn’t leave a Will), the closest living relative can apply.
All “closest living relatives” have equal status when someone dies intestate. For example, say the deceased had three children. All three children would have the right to apply for probate in this scenario – the oldest child wouldn’t take precedence.
How to value the deceased’s estate and work out if you need to pay Inheritance Tax
Before you apply for probate, you must estimate the value of the deceased’s estate, determining whether you need to pay Inheritance Tax.
If you need to pay Inheritance Tax, this will influence when you can apply for probate.
How do I apply for probate?
When you have completed and submitted your estimate of the valuation of the deceased’s estate, you can apply for probate online or by post. The government website and portal where you apply for probate claims that applying online can help you get a grant of probate quicker, but this isn’t guaranteed to be the case.
Can I stop a probate application that someone else has made?
Yes. Challenging a probate application is known as “entering a caveat.” You can only do this before probate is granted.
You may wish to challenge a probate application if there’s a dispute about who is eligible to apply for probate or regarding the existence of a Will, for example.
What help and advice are available around applying for probate?
The Courts and Tribunals Service Centre have a helpline and email address you can contact with any questions about applying for probate.
However, this service can’t help you value the deceased’s estate or deal with some of the complexities you may encounter during the process.
That’s why it’s a good idea to use a professional service to help you through the entire process of getting a grant of probate and administering the deceased’s estate. Learn more about how LawPlus Solicitors can help you throughout the probate process, or contact us here if you’re ready to instruct us.