The death of a loved one brings with it not only emotional grief but also a series of legal and financial responsibilities. One term frequently encountered in this context is 'probate.' For many, probate remains a vague concept, often associated with delays, bureaucracy and legal complexity. However, understanding why a Will goes to probate - and what the process involves - can bring clarity and help executors and beneficiaries manage their duties more confidently. This blog explores what probate is, why it is often required even when there is a Will in place, and the practical implications for those tasked with administering an estate.
Probate is the legal process of proving a Will's validity and giving the executor the authority to deal with the deceased person's estate. This includes collecting assets, settling debts and liabilities, and distributing the remainder to beneficiaries in accordance with the Will.
If there is a valid Will, the executor(s) named in the document must apply for a legal document called a 'Grant of Probate'. This confirms their legal right to manage the estate. If there is no Will, or if the Will is invalid or contested, the estate is instead administered under the rules of intestacy, and an application is made for a 'Grant of Letters of Administration'.
Probate serves an important public function. It ensures that the deceased's wishes are followed and that their estate is properly managed, particularly in cases involving property, substantial assets or disputes among beneficiaries.
Many people assume that having a valid Will eliminates the need for probate. While a Will does indeed streamline the administration process by providing clear instructions, probate is still often required due to the nature of the estate's assets.
Financial institutions, such as banks, pension providers and investment managers, typically require sight of a Grant of Probate before releasing funds from accounts or transferring ownership of shares or investments. Similarly, if the deceased owned property or land in their sole name, probate is necessary to transfer or sell the property.
Probate acts as official confirmation that the Will is valid and that the named executor has the authority to act on behalf of the estate. Without it, third parties may refuse to release assets, as they need assurance that they are dealing with the correct individual and are protected from legal liability.
Even in situations where probate is not legally required, it may still be advisable to obtain it as a precautionary measure, especially if future issues or claims are anticipated.
There are situations in which probate is not needed, even when the deceased left a Will. The most common examples include:
- If the deceased held assets jointly with another person (such as a joint bank account or jointly owned home), those assets usually pass automatically to the surviving joint owner under the principle of survivorship. No probate is needed for this transfer.
- If the estate is relatively modest - typically under £5,000 - some financial institutions may release funds without requiring a Grant of Probate, though this varies between institutions.
- If the deceased did not own property and their assets are limited to personal possessions or small bank balances, probate may be unnecessary.
Nonetheless, even in cases where probate is not strictly required, executors should be cautious. They remain legally responsible for ensuring that all debts are settled and that the estate is distributed correctly. It is always worth seeking legal advice to confirm whether a Grant of Probate is needed in your particular circumstances.
Once it has been established that probate is required, the process begins with the executor gathering information about the deceased's assets and liabilities. This includes valuing the estate and identifying what is owned and owed. An accurate valuation is essential, as it determines whether Inheritance Tax is due and how the estate should be administered.
The next step is to submit an application for the Grant of Probate to the Probate Registry. This includes:
- A completed probate application form
- The original Will and death certificate
- An inheritance tax return (even if no tax is due)
If Inheritance Tax is payable, some or all of it may need to be paid before the Grant of Probate is issued. The executor may use funds from the deceased's bank accounts or consider a loan to settle the tax bill.
Once the Grant of Probate has been issued, the executor can begin administering the estate: collecting assets, paying debts and liabilities, settling any outstanding tax issues, and finally distributing the estate to the beneficiaries in line with the Will.
This process can take several months to complete. Delays often occur if there are complications with valuing the estate, selling property, dealing with foreign assets or resolving disputes among beneficiaries.
If the deceased died without leaving a valid Will, they are said to have died 'intestate'. In this case, an administrator - typically the next of kin - must apply for a Grant of Letters of Administration. The administrator's role is similar to that of an executor, but instead of following a Will, they must distribute the estate according to the rules of intestacy.
These rules prioritise spouses, civil partners and close relatives. Unmarried partners, stepchildren and friends do not have automatic rights under intestacy. For this reason, dying without a Will can lead to unintended outcomes and disputes among surviving family members.
The probate process can be challenged in several ways. For example, disputes may arise over the validity of the Will, particularly if there are allegations of undue influence, lack of capacity or improper execution. Alternatively, beneficiaries may challenge the way the executor is administering the estate, or creditors may contest distributions if debts remain unpaid.
There are also claims that can be made under the Inheritance (Provision for Family and Dependants) Act 1975. Under this legislation, certain individuals can seek financial provision from the estate if they believe the Will does not make reasonable provision for them.
In such cases, probate may be delayed or paused while the dispute is resolved. For this reason, executors should act transparently and communicate clearly with all interested parties to minimise the risk of conflict.
The length of the probate process varies depending on the size and complexity of the estate. On average, straightforward estates may be settled within six to nine months. More complex estates - involving property sales, business assets, foreign holdings or disputes - can take a year or more.
Key factors that affect the timeline include:
- Delays in valuing assets or obtaining information
- Property sales that take time to complete
- Disputes between beneficiaries
- Challenges to the Will or probate process
- Delays in HMRC processing inheritance tax returns
Executors should keep detailed records and seek professional advice where needed to avoid unnecessary delays and ensure they are meeting their legal obligations.
A Will goes to probate because it is the legal mechanism by which the executor gains the authority to manage and distribute the deceased's estate. While the presence of a Will simplifies the process, it does not automatically remove the need for probate, especially when the estate includes property, financial assets or significant holdings.
Understanding the probate process helps executors act with confidence, avoid mistakes and honour the deceased's final wishes. It also reassures beneficiaries that the estate is being handled lawfully and fairly.
For families dealing with bereavement, the legal and administrative burden of probate can feel overwhelming. Knowing when probate is required, what it involves, and how to navigate the steps can make a considerable difference in managing the estate smoothly and with dignity.
At Premier Solicitors, we specialise in guiding executors and families through the probate process with clarity and care. Whether you're unsure if probate is needed, facing a complex estate, or simply need help applying for a Grant of Probate, our experienced team is here to support you every step of the way.
To learn more about how we can assist you with probate, please contact us at 01234 358 080, or visit our contact page to submit an enquiry form.
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