What is Probate?

"Strictly speaking, Probate is the legal right to deal with someone’s property, money and possessions (their “estate”) when they die."

Strictly speaking, Probate is the legal right to deal with someone’s property, money and possessions (their “estate”) when they die. To obtain this right you need a “grant of representation”, of which there are two types:

Grant of Probate

This applies if a will has been left. The Executor(s) should apply for the grant by submitting a PA1P form – https://www.gov.uk/government/publications/form-pa1p-apply-for-probate-the-deceased-had-a-will or by applying online https://www.gov.uk/applying-for-probate/apply-for-probate

Only four people can apply for probate and be named on the Grant of Probate.

Grant of Letters of Administration

This may be required if:

  • There is no will or the will is not valid
  • There are no executors named in the will
  • The executors are named but are unable or unwilling to act

The order in which people may apply to be an Administrator is determined by the rules of intestacy:

  1. Married partner or civil partner of the deceased
  2. Child of the deceased
  3. Grandchild of the deceased
  4. Parent of the deceased
  5. Sibling of the deceased
  6. Nephew or niece of the deceased
  7. Another relative of the deceased

An application can be made by submitting a PA1A form – https://www.gov.uk/government/publications/apply-for-probate-by-post-if-there-is-not-a-will or online https://www.gov.uk/applying-for-probate/apply-for-probate

Obtaining a grant can normally take anywhere between 6-8 week, although the impact of Covid-19 has resulted in some additional delays.

Inheritance Tax

To obtain a grant you will need to show that either you have paid any inheritance tax due or that there is no inheritance tax to pay. This means you will need to list out the value of all assets at the date of death and deduct any debts or liabilities. There would not normally be any tax to pay if the net value if below £325,000, if the whole estate is being left to a spouse or civil partner, or if everything above £325,000 is being left to an exempt beneficiary such as a charity.

There are a range of reliefs and exemptions that should be considered when calculating Inheritance Tax – please see separate guide on this website.

Most Inheritance Tax is paid through the Direct Payment Scheme (DPS). This means, if the person who died has money in a bank or building society account, the person dealing with the estate can ask for all or some of the tax due to be paid directly from the account. However, if the liquid assets in the estate are insufficient to pay the Inheritance Tax alternative funding solutions are available (link to Executor Loan page on website)

Additional responsibilities

It is now common for the term “probate” to also refer to the process of managing the estate. In addition to applying for the grant this may also mean:

  • Registering the death
  • Finding the will
  • Arranging the funeral
  • Securing any property
  • Distributing the assets

Please see separate guides on this website for more information on the role of Executor and Estate Administrators.