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Probate FAQs

What is probate?
Probate is the word used to describe the legal process of administering the estate of a person who has died, and, after deducting debts and other liabilities, transferring that person's money and possessions to the people who will inherit them: their beneficiaries.
How do I know if I need to get a grant of probate?
As a general rule, if the person who has died owned assets in their own name, you will need a grant of probate. Exceptions include where the only assets involved are low value bank or building society accounts or if all of the assets are held in joint names.
Can I apply for grant of probate myself?
You can, but bear in mind the complexities and the possible timescale. If you want to do probate yourself, Lawpack's Probate Kit provides you with an expert guidance manual and access to the probate forms.
How long does probate take?
It will depend on the amount of work necessary. A straightforward estate with a few UK based assets and a small number of beneficiaries will take less time to administer than a complex estate with numerous assets, both in the UK and overseas, and a large number of beneficiaries some of whom perhaps cannot be easily located.
How much are the probate fees?
On personal applications for grants of probate, the probate fee is currently £215, unless the net estate is less than £5,000, in which case no probate fee is payable for the grant.
Do I need to involve a solicitor?
You can either do probate yourself or you can seek professional advice from either a bank, Trust Corporation or solicitor, or from a stockbroker or other adviser. Whether an executor handles all the tasks involved in administering the estate or uses professional advisers is a matter of choice and convenience. Should you want to do DIY probate, Lawack's Probate Kit can help. The Kit includes expert guidance and provides access to all the probate forms you need.
There is a Will that leaves everything to my mother/father; doesn't that mean that I don't need a grant of probate?
It depends. If the person who has died owned assets in their own name, you will need a grant of probate. Exceptions include where the only assets involved are low value bank or building society accounts.
What is an estate?
Someone's estate is everything that they own; all of their assets (whether real property or personal property) and their liabilities.
Who are executors?
An executor is quite simply a person the deceased wished to deal with the administration of their estate after their death.
What are an executor's duties and responsibilities?
An executor is legally responsible for carrying out the deceased’s wishes, as outlined in the Will and to perform certain legal duties and formalities to administer the estate. Executors have the power to deal with the deceased’s assets from the date of death. But it’s not until they receive a grant of probate in England and Wales (known as ‘confirmation’ in Scotland), that the executors can prove their authority to those institutions and authorities that hold assets in the deceased’s name.
What are the basic duties of an executor?
To check and understand the Will. To obtain details of all the assets and liabilities. To complete an application for the grant of probate or confirmation. Fill in HM Revenue & Customs forms. Collect in the assets. Pay inheritance, income and capital gains tax. Pay liabilities and expenses of the estate. Pay or transfer legacies. Distribute the residuary estate. Prepare estate accounts.
Are executors liable for any mistakes made during the probate process?
There are certain circumstances during probate where executors can be personally liable if they fail to correctly carry out the legal duties and procedures required; for example: (1) Failure to safeguard assets (e.g. executors failing to take steps to preserve the value of the deceased’s property). (2) Misappropriation of assets (e.g. executors using the estate assets for their own means). (3) Failure to submit correct tax returns, either within the correct timescales or with the correct information and supporting paperwork.
Who can act as an administrator if there isn’t a Will?
In England and Wales, when there is no Will, administrators are appointed in the following order of priority: The deceased’s spouse. Any child of the deceased and any issue of a child who died before the deceased. The parents of the deceased. Brothers and sisters of the whole blood of the deceased and the issue of any who died before the deceased. Brothers and sisters of the half blood of the deceased and the issue of any who died before the deceased. Grandparents of the deceased. Uncles and aunts of the whole blood and the issue of any who died before the deceased. Uncles and aunts of the half blood and the issue of any who died before the deceased.
Who can apply for a grant of probate in England & Wales?
In England & Wales, the following can apply: (1) The executor(s) named in the Will must apply for the grant of probate. (2) If there are no executors named in the Will or the executor(s) are unwilling or unable to act, then any of the residuary beneficiaries may apply for the grant of probate. If there is no Will, the people who apply for the grant of probate are called ‘administrators’ (the term ‘executors’ is only used if the deceased wrote a Will) and the probate application is for a Grant of Letters of Administration, rather than a grant of probate.
Who can apply for confirmation in Scotland?
In Scotland, the following can apply: (1) The executor(s) named in the Will must apply for confirmation. In confirmation terms, these people are referred to as ‘executors-nominate’. (2) If there are no executors named in the Will or the executor(s) are unwilling or unable to act, then any of the residuary beneficiaries may apply for confirmation. These are referred to as ‘executors-dative’.
A close relative has just died; what do we need to do?
(1) Register the death at the Registry office of Births, Deaths, Marriages and Civil Partnerships for the district where the person has died. (2) Ensure that the deceased’s home and possessions are safe. If the person who has passed away lived alone, you should go to their home as soon as possible after the death to secure the premises. If possible, contact the insurers to make sure that adequate home and contents insurance cover is in place. (3) Find the Will, if there is one. It’s not essential to find the Will before the funeral, but it’s best to find it as soon as possible following the death so that any expressions as to funeral wishes are considered and the executors are informed. If there is no Will, the deceased will have died intestate. Find out more about the laws of intestacy. (4) Administer the estate. The executors appointed in a Will must deal with the deceased’s estate will need to collect in all the assets, pay out any liabilities and, if necessary, apply for a grant of probate.
My husband had £1,000 in a bank account in his own name. What is the bank's threshold before the need of a grant or probate, to release the funds?
Coping with bereavement is hard enough, but matters of estate administration are further complicated by financial institutions that don't make it easy to work out if probate is required. Banks, building societies, share registrars and other institutions all have different requirements for dealing with a deceased person's account. As a general rule, most institutions will release up to about £15,000 of an estate to the executors of the Will on production of a death certificate; that is, without the need for probate. However, thresholds can range anywhere from £5,000 to £30,000.
I don’t have enough money to pay for the funeral. How long will it take for us to get probate and to be able to access her bank accounts?
The cost of a funeral can usually be paid from a bank or building society account in the deceased's sole name, regardless of whether or not probate is required.
I am an executor to my father's estate; how do I go about getting authority over his affairs in Scotland?
As executor to your father’s Will, you have the power to deal with your father's assets from the date of his death. However, it's not until you receive 'confirmation' in Scotland that you can prove your authority to those institutions and authorities that hold assets in your father's name. Application for confirmation is made to The Sheriff Clerk of the Sheriff Court in the area in which the deceased had been domiciled at his death. A list of Sheriff Courts is available online at www.scotcourts.gov.uk. The grant of confirmation is proof to the public that the executors can realise the deceased's estate, collect from the deceased's debtors and distribute the assets, as determined by the will. The executors can now send confirmation, or a certificate of confirmation, to all parties concerned, requesting whatever money is due to the estate. This money can be deposited into the executors' bank account from which debts of the deceased can be paid.
I am acting as an executor for someone who died recently and I find the inheritance tax issues complicated. How do I calculate the tax due?
Up to a certain value, the estate is exempt from inheritance tax, but once you reach that threshold, there are quite considerable amounts of tax to be paid. The rates to be paid vary from time to time but you can find the latest figures at the HM Revenue & Custom's website. You can calculate the tax yourself by using HM Revenue & Custom's Inheritance Tax interest calculator. If you are finding the whole thing too much, then hand the tax calculation problem over to your local Capital Taxes Office and they will work it out for you.
What happens to someone's income tax affairs when they die?
When someone dies, they are entitled to their normal full year's worth of allowances. A tax return will need to be completed for the last period of their life from 6 April up to the date of their death and the tax will have to be worked out accordingly. Income arising after death is treated as the income of the estate and becomes the responsibility of the trustees or executors. When the estate is distributed, both the capital and the income that has arisen since the date of death will be distributed according to the Will to the various beneficiaries and tax will be deducted from any income that has been received at the appropriate rate. If you, as a beneficiary, receive income that's been credited to a deceased person's estate, then you will receive that income net of the appropriate rate tax and while you may have to pay higher rate tax on the income, there's also a chance that you might be able to claim some back or for there to be no adjustment at all. You should be issued with Form R185, which shows the tax suffered.
What is a trust?
A trust is brought into existence when a person (called the 'settlor') transfers some of his assets to trustees (who become the legal owners) for the benefit of third parties, called 'beneficiaries' (the beneficial owners). A trust is a legal entity in itself. Another word for a trust is a settlement. Sometimes trusts are created under a Will and sometimes they are created during the lifetime of the settlor. Sometimes trusts are created to save tax, sometimes to protect assets; there are many and various reasons for setting up a trust.
How are trusts in wills affected by tax and inheritance tax?
The main tax that affects Wills, triggered by the death of the person, is Inheritance Tax. When someone dies the deceased's personal representative or executor will make sure that a personal Tax Return is completed from the start of the tax year to the date of the deceased's death. From the date of the deceased's death to the end of the tax year the personal representative will have to account for tax and report to the beneficiaries on the tax that he or she has deducted. Each year the personal representative will have to submit a Trust and Estate Tax Return to HM Revenue & Customs. But in the year in which the estate is wound up and all the assets have been distributed, the personal representative will only have to account for the tax on the income up to the date of distribution. In practice, if probate value is less than £2.5 million and the total tax due by the personal representative is less than £10,000, HM Revenue & Customs will accept a single computation and one-off payment.


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