For many people dealing with the loss of a loved one, the term probate often raises questions. Why is it necessary? What does it achieve? And crucially, when do you actually need it? Despite its legal significance, probate is still widely misunderstood. Some assume that writing a Will eliminates the need for it, while others believe it is only required for wealthy estates. In truth, probate serves as a fundamental legal safeguard - one that applies in many situations, regardless of estate size or complexity. In this blog, we explore why probate is needed, when it applies, and what happens if you try to deal with an estate without going through probate. By gaining a clear understanding of probate and its role, you can make informed decisions and avoid common pitfalls during the estate administration process.
Probate is the legal process by which someone is granted authority to deal with the estate of a person who has died. If the deceased left a Will, probate is the means by which the Will is “proved” to be valid and enforceable.
The person named in the Will as executor applies for a legal document called a Grant of Probate. This grant enables them to access the deceased's bank accounts, sell property, settle debts, and distribute the estate to beneficiaries as outlined in the Will.
If there is no Will, the situation is slightly different. In this case, the person handling the estate applies for a Grant of Letters of Administration. This grants them similar authority, but the estate must be distributed according to the statutory rules of intestacy, rather than personal wishes set out in a Will.
Whether or not a Will exists, the principle is the same: probate provides official, legal confirmation of the right to administer the estate.
Probate is required when the deceased person's estate includes assets that cannot be released or transferred without legal authority. These typically include:
- Property or land owned in the deceased's sole name
- Bank accounts or investments exceeding a certain threshold (often £5,000–£10,000)
- Shares, bonds or premium bonds
- Pension lump sums
- Life insurance policies not held in trust
Most financial institutions, including banks and investment firms, require sight of a Grant of Probate before releasing funds. This requirement is to ensure that the person claiming the funds is legally entitled to them and that the institution is protected from liability.
Similarly, if the deceased owned a property outright or as tenants in common with someone else, probate is needed to sell or transfer the legal title of the property.
In these cases, you need probate not because of the existence of a Will, but because of how the assets are held and what third parties require before they will release those assets.
Probate is not always necessary. There are several circumstances where an estate can be administered without applying for probate:
- If all significant assets were held jointly with a surviving spouse or civil partner, those assets usually pass automatically by survivorship. Probate is not required to transfer them.
- If the estate is small, most banks and institutions will release funds without a Grant of Probate, often subject to internal thresholds and indemnity forms. Each institution sets its own limit.
- If the deceased did not own any property or land, and their other assets are minimal, the need for probate may be avoided.
It's important to remember that even if the estate is small, liabilities such as debts, loans or funeral expenses must still be dealt with. Executors and administrators must always proceed with caution to avoid personal liability.
Probate provides essential legal authority and certainty. Without it, third parties will not deal with the estate, leaving assets locked and debts unpaid. Here's why probate is necessary in practical terms:
1. Accessing bank accounts and financial assets
Without probate, most banks will not release funds held in accounts solely in the deceased's name. This could prevent executors from paying debts, funeral costs or even inheritance tax.
2. Selling or transferring property
HM Land Registry requires probate before a property owned solely by the deceased can be sold or transferred. Without a Grant of Probate, estate agents and solicitors will not proceed with the sale.
3. Dealing with HMRC and Inheritance Tax
If Inheritance Tax is payable, a full valuation of the estate is required. HMRC needs accurate information, and some of the tax may need to be paid before probate is granted.
4. Distributing assets to beneficiaries
Executors and administrators are legally responsible for distributing the estate correctly. Probate provides evidence of their authority and protects them from potential legal claims by beneficiaries or creditors.
5. Protection from personal liability
Administering an estate without probate can expose individuals to legal risk. For example, if an asset is wrongly distributed or debts are overlooked, the executor may be held personally liable.
Failing to apply for probate when it is needed can lead to a number of serious consequences. Without probate:
- Property cannot be sold or transferred
- Financial accounts will remain frozen
- Beneficiaries cannot receive their inheritance
- Debts may go unpaid
- Executors or administrators may breach their legal duties
In many cases, delays in applying for probate also lead to unnecessary legal costs and strain within families. If disputes arise among beneficiaries or creditors, the absence of probate can worsen the situation and complicate any potential resolution.
It's also worth noting that there are time limits for certain actions, such as submitting Inheritance Tax returns and claiming certain reliefs. Delays in obtaining probate can lead to missed deadlines and financial penalties.
Having a Will is highly beneficial - it sets out your wishes, names your chosen executors and reduces the likelihood of disputes. However, it does not automatically eliminate the need for probate. Even when a valid Will exists, probate is still usually required if:
- The estate includes property or land
- The value of the estate exceeds the probate threshold set by banks or other institutions
- The estate includes complex or overseas assets
In essence, probate deals with the form of authority needed, while a Will deals with the content of what is to be done. Both are often required in tandem.
If there is a valid Will, the person named as executor must apply for probate. If there is no Will, or the named executor is unable or unwilling to act, a close relative (usually the next of kin) may apply for Letters of Administration.
An executor can act alone or jointly with others, depending on the Will's provisions. Professional support can also be sought, particularly for complex estates.
Applying for probate involves several steps, including:
- Valuing the estate's assets and debts
- Completing inheritance tax forms
- Submitting a probate application to the Probate Registry
- Paying the relevant probate fees
- Gathering, managing and distributing estate assets
It is a significant responsibility that carries legal obligations, and mistakes can be costly. Many executors choose to instruct a solicitor to help them through the process, particularly where the estate is large, contested or includes overseas elements.
The time required to obtain probate and complete estate administration varies depending on the complexity of the estate. On average:
- A simple estate may take 6 to 9 months
- A more complex estate could take 12 months or more
- Disputes or tax issues may extend the process even further
The probate application itself typically takes 8 to 16 weeks, depending on whether Inheritance Tax is due and how quickly information is gathered. Once the Grant of Probate is issued, the executor can proceed with administering the estate, which involves paying debts, selling assets and distributing inheritances.
Keeping beneficiaries informed and organised throughout the process can help avoid misunderstandings and reduce potential conflict.
Probate is a vital legal step that ensures estates are administered correctly and lawfully. While not every estate will require it, many do - especially those involving property, significant financial assets or complex family arrangements. Understanding when and why probate is needed can prevent delays, minimise risk and ensure that the wishes of the deceased are honoured.
Whether you are an executor, administrator, or simply planning for your own future, seeking early legal advice can make all the difference. Probate may seem daunting, but with the right support, it can be managed efficiently and with confidence.
At Premier Solicitors, we understand how difficult it can be to navigate the legal and administrative challenges following a bereavement. Our probate specialists are here to guide you through every stage of the process, from confirming whether probate is needed to dealing with HMRC, valuing assets and distributing the estate.
For more information, please call us on 01234 358 080 or visit our contact page to send an enquiry form.
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