When someone dies, their family often has to deal with a long list of practical and legal responsibilities at a time when they are already grieving.
One of the most important parts of the process is probate.
For many families, probate is simply something they have heard of but don’t fully understand. They may know that it has something to do with dealing with a person’s estate after death, but they may not realise how much time, paperwork and expense can sometimes be involved.
If the deceased owned a property, had savings or investments, or left assets to several beneficiaries, administering the estate can become particularly complicated.
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Request Your Free Estate Planning ReviewUnderstanding how probate works before it is needed can help families prepare for what lies ahead.
What is probate?
robate is the legal process of dealing with someone’s estate after they die.
In England and Wales, if the deceased left a valid Will, the person or people named as executors may need to apply for a Grant of Probate.
The Grant of Probate gives the executors the legal authority to deal with certain assets belonging to the deceased.
This can include:
Selling or transferring property
Closing bank accounts
Collecting investments
Paying outstanding debts
Dealing with tax
Paying estate administration expenses
Distributing the remaining estate to beneficiaries
If someone dies without a Will, the process is generally different. The person dealing with the estate may need to apply for Letters of Administration instead.
The terminology can be confusing, which is why professional advice can be valuable when an estate is complicated.
Does every estate need probate?
No.
Not every estate requires a Grant of Probate.
For example, some assets may pass automatically to another person, such as certain jointly owned assets, while some financial institutions may release relatively small amounts without requiring a formal grant.
However, if the deceased owned a property in their sole name or had substantial assets, probate may be required before those assets can be dealt with.
This is particularly important when a family home forms a significant part of the estate.
What happens during probate?
Probate is not simply about proving that someone has died.
The executors may need to identify and value everything the deceased owned and owed.
This can involve:
1. Finding the Will
The first step is usually to establish whether the deceased left a valid Will and identify who has been appointed as executor.
The executor is responsible for administering the estate according to the Will and the law.
2. Identifying the assets
The executor may need to find information about:
Bank accounts
Savings
Investments
Property
Vehicles
Personal possessions
Business interests
Life insurance
Other valuable assets
The value of the estate may need to be established as part of the process.
3. Identifying debts
The deceased’s debts do not simply disappear when they die.
Outstanding mortgages, loans, credit cards, bills and other liabilities may need to be dealt with from the estate before the remaining assets are distributed.
4. Considering Inheritance Tax
Depending on the value and circumstances of the estate, there may be Inheritance Tax considerations.
The executor may need to report information to HM Revenue & Customs and arrange payment of any tax that is due.
5. Applying for the Grant of Probate
Once the necessary information has been gathered, the executor can make the appropriate application.
If the application is successful, the Grant of Probate provides the authority needed to deal with many assets held in the deceased’s sole name.
6. Collecting and selling assets
The executor can then deal with the estate’s assets.
This might involve closing accounts, selling investments or selling the family home.
7. Paying debts and expenses
Outstanding liabilities and legitimate estate administration expenses are generally dealt with before the estate is distributed.
8. Distributing the inheritance
Once the estate has been properly administered, the remaining assets can be distributed to the beneficiaries according to the Will or, where there is no Will, according to the applicable rules of intestacy.
How long does probate take?
There is no single answer.
A straightforward estate may be dealt with relatively quickly, while a complicated estate can take considerably longer.
Delays can arise because of:
Missing paperwork
Property valuations
Difficulties identifying assets
Inheritance Tax issues
Property sales
Disputes between beneficiaries
Claims against the estate
Problems establishing who owns an asset
Delays involving financial institutions or other organisations
A family may therefore expect to receive an inheritance quickly but find themselves waiting considerably longer.
Probate can become expensive
Probate itself is only one part of the overall cost of administering an estate.
Families may also encounter professional fees, valuation costs, property-related expenses, tax and other administration costs.
If a solicitor charges a percentage of the estate, even a relatively small percentage can represent a significant amount when the estate includes a valuable property.
For example, a 3% fee on a £400,000 estate would be £12,000.
That is why families should understand exactly how professional fees are calculated before instructing an adviser or solicitor to administer an estate.
What happens if someone challenges the estate?
Having a Will does not necessarily mean that nobody can challenge an estate.
In certain circumstances, someone may make a legal claim against an estate.
There can also be disputes about:
Whether a Will is valid
Who owns a property
Whether someone was financially dependent on the deceased
Whether the deceased had capacity when making the Will
Whether someone was properly provided for
Contributions made towards a property
A dispute can significantly increase the time and cost involved in administering an estate.
This is one reason why estate planning should involve more than simply writing a Will.
A Will and probate are not the same thing
A common misunderstanding is that having a Will means probate will not be necessary.
In reality, a Will and probate serve different purposes.
A Will sets out a person’s wishes about what should happen to their estate after death and normally identifies the people they want to benefit.
Probate is part of the legal and administrative process that allows the estate to be dealt with after death.
A Will can therefore be extremely important, while probate may still be required to administer the estate.
What happens to the family home?
For many families, the property is the most valuable asset they own.
If the home is owned solely by the deceased, it may form part of their estate and may need to be dealt with during the administration process.
This can create practical difficulties.
For example, beneficiaries may have to wait for the property to be transferred or sold before they can receive their inheritance.
There may also be questions about mortgages, ownership, occupation and the property’s value.
This is why it can be important to consider how a property is owned, rather than only deciding who should receive it after death.
Could estate planning reduce complications?
Good estate planning cannot guarantee that an estate will never face a dispute or that probate will always be quick.
However, appropriate planning can sometimes make a significant difference.
Depending on someone’s circumstances, estate planning may involve:
A professionally prepared Will
Reviewing how property is owned
Considering appropriate trusts
Planning for Inheritance Tax
Keeping important documents organised
Regularly reviewing beneficiaries
Making sure family members understand the arrangements
Taking advice where there are complicated family or property circumstances
Trusts can sometimes play a role in estate planning, but they are not suitable for everyone.
Different types of trusts have different legal and tax consequences, and transferring an asset into a trust can have significant implications.
Professional advice should therefore be obtained before making major changes to the ownership of a property or other assets.
Probate is often easier when the estate is organised
One of the simplest things someone can do during their lifetime is make sure their financial and legal affairs are organised.
Executors may need to find information about bank accounts, investments, insurance policies, property and other assets.
If important information is missing, the process can become more difficult for the family.
Keeping an up-to-date Will and making sure executors know where important documents can be found can make the administration of an estate much easier.
The bigger lesson: don't leave everything until after death
Probate happens after someone dies.
By then, it is too late for the deceased to explain what they intended, answer questions about their assets or change the way their property is owned.
That is why estate planning should ideally take place during a person’s lifetime.
The question isn’t only:
“Who do I want to inherit my estate?”
It can also be:
“How should my assets be owned and structured so that my wishes can be carried out as effectively as possible?”
For families with a valuable home, complicated family circumstances or significant assets, this distinction can be particularly important.
Final thoughts
Probate is an important part of the UK estate administration process, but it can sometimes be far more complicated than families expect.
A Will can provide clear instructions, but it does not necessarily eliminate questions about ownership, tax, debts or potential claims against an estate.
Planning ahead can give families a clearer understanding of what may happen to their property and other assets after death.
The earlier these questions are considered, the more opportunity there may be to put appropriate arrangements in place.
Estate planning isn’t simply about deciding who gets your assets. It’s about understanding how those assets will be dealt with, protected and passed on when the time comes.
