Probate and Estate Administration

Dealing with probate and estate administration in the aftermath of a death can be a complex and upsetting process. Our expert Private Client team is experienced in guiding clients through all aspects of probate, estate administration, Wills and trusts. We provide clear, practical advice that aims to make the process as smooth and pain-free as possible.

What is probate?

Probate is the legal process through which a deceased person’s estate is administered. It involves validating the deceased’s Will (if there is one), paying off debts, and distributing the remaining assets to the beneficiaries in accordance with the Will. If there is no Will, assets will be distributed according to the relevant rules around inheritance (the intestacy rules).

What does the probate process involve?

The estate needs to be valued, including any property, financial accounts and investments, shareholdings, life insurance policies, and pensions as at the date of death. This information is collated into an HM Revenue & Customs (HMRC) form if necessary, any Inheritance Tax due is paid, and then an application can be made to the Probate Registry for a Grant of Representation to be issued.
The Grant of Representation gives the executors or administrators the legal authority to deal with the assets in the estate. As your solicitors, we can guide you through the process of obtaining a Grant of Representation, offering different levels of support depending on your needs and the complexity of the estate.

Who is responsible for the probate process?

The person responsible for administering the probate process is called the executor, if there is a Will. If there is no Will, somebody will need to apply for Letters of Administration in accordance with the intestacy rules, usually a family member or other close relative.

What is the difference between probate and Letters of Administration?
Probate is granted when there is a valid Will, and this allows the executor to administer the estate.
Letters of Administration are granted when there is no Will or no named executor, allowing the person applying to administer the estate.

If you wish to discuss wills, probate, trust or powers of attorney with us, please call Simon Acworth on 01420 81276 or Alison Courtenay on 01420 81271. Alternatively, please fill in the form below.

What happens to joint assets?

Assets owned jointly pass automatically to the surviving owner by right of survivorship (i.e., joint bank accounts or property held as joint tenants) and do not form part of the probate estate. This does not include property held as joint tenants in common.
The joint share of the asset will still form part of the value of the total estate for Inheritance Tax purposes, even though probate is not required for that particular asset.

Do all estates have to go through probate?

Not all estates require probate. For example, assets that are jointly owned, have designated beneficiaries (such as life insurance policies), or are held in a trust, typically don’t go through probate.

Can I deal with probate myself or do I need a solicitor?

You can obtain probate personally, but it is always best to take legal advice, especially if the estate is complex, involves disputes, or includes multiple or foreign assets.
Our team has years of experience guiding clients through probate, including dealing with complex assets.

How do I apply for probate?

To apply for probate in the UK, a probate application form needs to be completed; PA1P if there is a Will, or PA1A if there is no Will. An Inheritance Tax form will usually need to be completed (even if there is no tax due) and then the application is sent to the Probate Registry along with the original Will (if applicable) and death certificate. The fee needs to be paid at the same time.

How much does probate cost?

The cost of probate varies, depending on the size and complexity of the estate. There is a court fee of £300 and £1.50 for each official court copy of the Grant of Representation.

If a solicitor is used to obtain probate or deal with the administration of the estate on behalf of the executors, there will be legal costs payable. While here at Downie & Gadban, we charge based on hourly rates so you are only billed for the work we actually do, some firms will also charge a percentage of the value of the estate. It is important to obtain clarity on fees and how they are structured before you instruct a solicitor, to avoid unpleasant surprises. (You can see our estimated fees for this work here.)

There may be other professional fees for legal asset searches or Notices placed in the London Gazette, executor fees if a professional executor has been appointed, surveyors or valuation fees, auctioneers and house clearance costs, or costs for other services from similar organisations.

If an estate is valued at less than £5,000, no probate fee is payable.

Do I have to pay Inheritance Tax?

Inheritance Tax (IHT) is payable if the estate exceeds the available tax-free threshold (currently £325,000). If the estate’s value exceeds this, IHT is charged at 40% on the amount above the threshold.

There are reliefs and exemptions (e.g., transfers to a spouse or charity) that can reduce the amount of tax owed.

Any errors in tax payments can incur severe penalties from HMRC, so it may be advisable to seek professional advice if the estate is substantial enough to potentially trigger the IHT threshold.

How long does probate take?

The duration of probate can vary, but it typically takes from six months to over a year, depending on the complexity of the estate, the efficiency of the court process and other financial institutions and whether there is any dispute. Simple estates are generally settled more quickly, while complex estates can take longer.

What happens if someone dies without a Will (intestate)?

If someone dies without a Will, they are considered to have died “intestate.” In such cases, the estate is distributed according to the laws of intestacy, which typically prioritise spouses, children, and other close relatives.

What happens if debts exceed the value of the estate?

If the estate is insolvent (debts exceed assets), the debts must be paid in a specific order or priority. Beneficiaries may not receive anything, and the estate could be declared bankrupt.

Can creditors claim from the estate during probate?

Yes, creditors can make claims against the estate during probate. The executor is responsible for notifying creditors, paying off valid debts, and ensuring the estate’s debts are settled before distribution to the beneficiaries.

Notices for creditors can be placed in the London Gazette and a local publication requesting any valid creditors to contact the executor or solicitor dealing with the estate within two months. Placing the relevant Notice protects the executor from any personal claims that could be made against them.

How long after death do you have to apply for probate?

There is no strict legal deadline to apply for probate, but Inheritance Tax must be paid within two years of the death. Any payment made after six months will incur interest being charged on unpaid Inheritance Tax. Residuary beneficiaries can also expect the estate to be administered (or at least progressing) after around one year. They may be entitled to receive income on their unpaid inheritance after that time if probate was deliberately being delayed.

What if an executor doesn’t want to act?

An executor can renounce their role by signing a formal document (before they have started acting as an executor). If there is a co-executor, they can take over, or another person can apply for probate.

Can an executor be removed?

Yes, an executor can be removed or choose to step down (renounce). If there are issues with how the executor is managing the estate, beneficiaries or other interested parties can apply to court to have the executor replaced.

Can probate be contested?

Yes, probate can be contested. Disgruntled beneficiaries may challenge the validity of the Will, the actions of the executor, or the distribution of assets. Common grounds for contesting probate include claims of fraud, undue influence, lack of testamentary capacity or claims from family members who believe they have not been adequately provided for.

Any potential claims need to be made within six months of the issue of a Grant of Representation.

What happens if someone contests a Will during probate?

If someone contests a Will, the probate process can be delayed. The court will consider the claims, and the Will may be upheld or invalidated, potentially leading to a different distribution of assets.

Can you stop probate being granted?

Yes, it is possible to stop a Grant of Representation being issued by entering a caveat at the
Probate Registry.

A caveat is a way of holding up probate in the case of a dispute so that the assets cannot be dealt with until the dispute is settled. It is hoped that the parties can come to an agreement without going to court. The caveat can then be cancelled, and a Grant of Representation can be issued.

If there is a dispute over probate, it is wise to seek legal advice to prevent the dispute escalating, which can be costly and time-consuming. Our Dispute Resolution team can provide practical, plain English advice on any disputes.

What happens after probate is granted?

Once probate is granted, the executor or administrator can collect the deceased’s assets, settle any debts, and distribute the remaining estate to the beneficiaries in accordance with the Will or intestacy rules.

How is the estate administration finalised?

Any taxes, including Inheritance Tax, income tax and Capital Gains Tax must be settled during the probate process. The executor is responsible for paying the tax due, including finalising the income tax position at the end of the administration. In some cases, a formal Trust and Estate Tax Return may need to be submitted to HMRC. The estate will need to pay any tax due before the final assets are distributed.

The above information is for general guidance only and is not intended to replace legal advice. Any costs listed are accurate at the time of writing.