What is Probate
When a person dies, someone (the person named as personal representative) has to gather together the money they had, pay their debts and distribute what's left to the people named in the will. If there is no will the rules of intestacy decide how the personal representative should divide what remains of the deceased's estate.
Probate is the authority, awarded by the court acting through the Probate Service, for a person to administer the estate of someone who has died.
If the value of the deceased's estate is over £5,000 (after paying funeral expenses) you will need to go through probate. It can take time and the process can be complex.This section deals with various aspects of probate, including differences across the UK.
Your probate choices
You can tackle probate yourself or use a professional. Professional fees will usually be charged to the estate, so they won't be paid until probate is resolved. This can take several months, typically 6-9 but it can be longer with more complex estates.
The way in which professionals charge can vary. It could be by hourly rate. It could be a percentage of the total value of the estate. It could be per task. Before agreeing to use a professional you should confirm with them how you will be charged and when they expect to be paid.
Do it yourself
Applying for probate yourself will take time and effort, but it is possible - in fact around a third of all probate applications are made in person.
You will need a number of forms and documents. These will include a probate application form, the death certificate, the will (if available) and certain tax forms.
You can find out more about what is required to apply for probate yourself from the Probate Registry.You can find out more about the tax forms you will need to complete from HMRC.
Of course, the fact that one third of probate applications are made personally means two thirds aren't. This will often be because the assets are complex, because property is involved or because Inheritance Tax or other tax issues arise.
Find and use a solicitor or probate specialist
A solicitor or probate specialist will be able to assist you with your application for probate. They will talk you through what is required and why and they will prepare the papers. You will swear an oath before an independent solicitor or commissioner for oaths and the solicitor will send the papers to the Probate Registry.
The Probate Registry will issue a grant of representation to the solicitor once they are satisfied with the application.
What the solicitor or probate specialist is unlikely to be able to do is make the process any faster. Probate is still likely to take 6-9 months, even in quite straight forward cases.
Use a bank
You should already have contacted the deceased's bank as soon as possible after the death to freeze all accounts. This will prevent the possibility of fraud.
Many banks can also offer a probate service. Fees vary, but using the bank for probate is worth considering, especially if the person who has died has named the bank as executor.
Probate where a will exists
The executors of the will need to apply for a ‘grant of probate’ from the Probate Registry. If you are applying for probate through a solicitor or other professional they will make the application on your behalf.
The forms and documents you or the professional will need to supply include a probate application form, the death certificate, the will and certain tax forms.
If you are using professional help to make your application your solicitor or probate specialist will advise you what specific paperwork needs gathering. If you are making the application yourself, please see Do it yourself.
Once the Probate Registry is satisfied with the executor's evidence it will issue a grant of probate. This will allow the executors to legally administer the estate of the person who has died. They will then be able to distribute the contents of the estate amongst the beneficiaries (the people who benefit) named in the will
The executors will need to show the grant of probate to any banks, building societies, benefits agencies etc as evidence of their authority to act on the deceased’s behalf.
Probate where no will exists
If the deceased died without leaving a will their estate (their property and possessions) is distributed according to the rules of intestacy. If the deceased did make a will but it is not valid (because, for example, if wasn't properly executed) then intestacy rules also apply.
If the deceased was married or in a civil partnership, the first person entitled to the estate under intestacy rules is the spouse or civil partner. The amount they would inherit depends on how much the estate is worth and how many other surviving blood relatives the deceased has.You can find simplified rules of intestacy at the Probate Service.
Probate (confirmation) in Scotland
In Scotland the process referred to as ‘probate’ in England is called ‘confirmation’. As in England, anyone seeking confirmation can choose to act on their own, or seek professional help.
Requirements differ depending on whether a will exists.
Confirmation if there is a will
You will need to provide the sheriff clerk’s office with the following:
- The will
- Personal details of the deceased and his/her family
- The death certificate
- A complete breakdown of the estate (you can download the appropriate form here).
In the absence of any further enquiries the sheriff clerk should issue the confirmation within a matter of days.
Confirmation without a will
In addition to the above items you will also need to provide a ‘bond of caution’, which is issued by a guarantor and states that you will perform your duties as executor correctly. It also insures against loss if you mishandle the estate.
The bond can be made by an individual with sufficient capacity to guarantee the estate, or by an insurance company.
You should address any queries to the sheriff clerk (if you are acting alone) or your solicitor.
Confirmation is your authority to release the deceased’s money and assets from all accounts and policies. The process of collecting the estate together is known as ‘in-gathering’.
You can find your local sheriff clerk’s office here.
Probate on the Isle of Man
Probate on the Isle of Man is largely similar to that in England but there are some differences. You may still be able to apply yourself but you can choose to seek professional help.
For more information contact:
Isle of Man Courts of Justice
Isle of Man
Probate in Northern Ireland
Probate in Northern Ireland is largely similar to that in England. Again you may apply for probate yourself or use a solicitor.
There are two registries, the principal one in Belfast and a district registry in Londonderry.
If the person who has died lived in Counties Fermanagh, Londonderry or Tyrone you may use either registry; if the person lived in Counties Antrim, Armagh or Down you must use the registry in Belfast.
You can contact the Probate Offices at:
Royal Courts of Justice
PO Box 410
Tel: 028 9072 4678
Londonderry (District Registry)
Tel: 028 7126 1832
An insolvent estate is one where the value of the estate left by the person who has died is less than the value of their debts.If the deceased had been declared bankrupt prior to their death you should contact the official receiver or trustee immediately. They will usually handle the estate
The effect of an insolvent estate
As executor neither you, nor any other member of the deceased's family will be liable for the debt except in the following circumstances:
- Where the debt or any part of it was in joint names the other person will assume responsibility for the debt. If, then, you owned a house jointly with the deceased you will remain liable for meeting any mortgage costs.
- There are strict rules governing the paying back of creditors (people or organisations to whom the deceased owed money). Whilst you as executor are not liable for the debt, you will be liable for any action that leads to a creditor not receiving their correct entitlement. For this reason it is vital you do not hand out any portion of an estate until all creditors have been repaid. This applies no matter what the deceased put in the will.
Administering the estate of someone who has died insolvent can be complex and puts the executor at a greater than usual level of risk. For this reason you may wish to seek the help of a professional.