Specialist Estate Administration Lawyers
Many people are surprised to discover that having a valid will does not automatically avoid probate. A common misunderstanding is that once someone leaves a will, the executor can immediately deal with the deceased’s money, property and possessions without further legal formalities. And the question therefore for many people it is why is probate needed if there is a will?
In reality, often probate is still required even where:
- there is a professionally drafted will;
- the executors are clearly named; and
- there is no dispute about the estate.
This is because a will and probate perform different legal functions.
Lost a loved one and looking for help with probate? Call our highly experienced Probate Solicitors on FREEPHONE 0800 1404544 or one of our four local office numbers for FREE initial phone advice – with absolutely no strings attached.
Wills And Probate – The Basic Difference
A will explains:
- who should deal with the estate; and
- who should inherit.
Probate, on the other hand, is the legal process that confirms the executor’s authority to act.
Banks, investment companies, buyers of property and the Land Registry often require proof that the executor has legal authority before they will release money or transfer assets. That proof usually comes in the form of a grant of probate.
What Is Probate?
In short, it’s the legal process used to administer a deceased person’s estate.
Where somebody leaves a will, the executors named in the will usually apply for a legal document called a grant of probate. This formal document confirms:
- that the will is legally recognised; and
- that the executors have authority to deal with the estate.
Once probate has been obtained, executors can usually:
- close bank accounts;
- collect money;
- sell or transfer property;
- pay debts and taxes; and
- distribute the estate to beneficiaries.
Without probate, executors may have no practical way of proving their authority to third parties.
What Does a Will Actually Do?
A will is a legal document setting out:
- who should inherit;
- who should administer the estate; and
- how assets should be distributed after death.
However, a will does not itself transfer ownership of assets. For example:
- a house does not automatically transfer to beneficiaries simply because the will says so;
- banks do not usually release large sums solely because someone produces a copy of the will; and
- investment companies generally require formal legal authority before dealing with executors.
This is where probate becomes important.
Why Do Banks and Financial Institutions Require Probate?
Financial institutions have legal obligations to protect assets held in a deceased person’s name. And if they release money to the wrong person, they could potentially face claims from:
- beneficiaries;
- creditors; or
- other family members.
The grant of probate provides reassurance that:
- the executors are the correct people;
- the will has been accepted for probate purposes; and
- the executors have authority to collect the assets.
Each bank or institution has its own rules about when probate is required. Some may release smaller balances without probate, while others insist on it for relatively modest sums.
Why Is Probate Needed to Sell Property?
One of the main reasons it’s required is to deal with property owned solely by the deceased. If a property is in the sole name of the deceased, executors usually need a grant of probate before:
- selling the property;
- transferring ownership; or
- registering changes at the Land Registry.
Buyers and conveyancing solicitors will generally require proof that the executors have authority to sell. Without probate, the legal ownership of the property cannot usually be transferred.
Is Probate Always Required if There Is a Will?
No, it is not always needed. Some simpler estates do not require it even where a valid will exists.
Whether probate is needed depends mainly on:
- the type of assets;
- how assets were owned; and
- the value of the estate.
Situations Where Probate May Not Be Needed
It may not be necessary where:
- assets were jointly owned and pass automatically to the surviving owner;
- bank balances are relatively small;
- there is little or no property;
- assets are held in trust; or
- institutions agree to release funds without probate.
For example, where a married couple own their home as joint tenants, the property usually passes automatically to the surviving spouse outside the will.
Similarly, some banks may release modest balances without requiring probate. However, even relatively straightforward estates sometimes still require probate because different organisations apply different rules.
What Happens if There Is No Probate?
If probate is required but not obtained, executors may be unable to:
- access bank accounts;
- sell property;
- collect investments;
- pay beneficiaries; or
- finalise the administration of the estate.
In practice, the estate can become effectively frozen. This is one reason why obtaining probate is often essential even where the will itself is clear and undisputed.
Does Probate Mean the Will Has Been Approved by the Court?
No, not exactly. Probate does not necessarily mean a court has fully investigated or “approved” every aspect of the will.
Most probate applications are administrative rather than contested court proceedings. However, when it is granted, the Probate Registry has accepted the will for probate purposes and recognised the executors’ authority to act.
Can Probate Be Granted if Somebody Disputes the Will?
Potentially, yes it could be granted – but disputes can delay matters significantly.
If someone challenges the validity of a will, steps may sometimes be taken to prevent probate being granted until the dispute is resolved. For example, a what is known as a “probate caveat” may be entered at the Probate Registry to temporarily prevent the issue of a grant.
Disputes may involve allegations such as:
- lack of mental capacity;
- undue influence;
- fraud or forgery; or
- failure to comply with legal formalities.
Contentious probate disputes can substantially delay estate administration.
What Is the Difference Between Probate and Estate Administration?
These terms are often confused. Probate refers specifically to obtaining legal authority to deal with the estate.
In contrast, estate administration refers to the wider process of:
- collecting assets;
- paying debts and taxes;
- preparing estate accounts; and
- distributing the estate.
Obtaining probate is usually only one part of the overall administration process.
How Long Does Probate Take?
Timescales vary considerably depending on:
- the complexity of the estate;
- inheritance tax issues;
- property sales;
- delays obtaining financial information; and
- whether disputes arise.
Simple estates may progress relatively quickly, while complex estates can take much longer, especially if they involve property held overseas for example. Even after the Grant has been obtained, the administration of the estate may continue for many months.
What Information Is Needed for Probate?
Executors usually need to gather detailed information about:
- property;
- bank accounts;
- investments;
- pensions;
- debts;
- liabilities; and
- inheritance tax.
Executors are responsible for valuing the estate accurately and dealing with any inheritance tax reporting requirements before probate is granted.
Who Applies for Probate?
The executors named in the will usually make the application. There may be:
- one executor; or
- several executors acting together.
Sometimes an executor:
- does not wish to act;
- cannot be located; or
- has died.
In those situations, alternative arrangements may sometimes be possible.
Can Probate Be Avoided?
Certain estate planning arrangements may reduce the likelihood that probate will be required for some assets. Examples may include:
- jointly owned assets;
- trusts;
- lifetime gifting; or
- nominated pension and life insurance benefits.
However, probate cannot always be avoided entirely. Many people incorrectly assume that simply making a will means probate will not be needed. In reality, wills and probate usually work together rather than replacing one another.
Is Probate Public?
Yes, it is. Once the Grant has been issued, both the Grant itself and will generally become public documents. Copies can usually be obtained from government records. This sometimes surprises families who assumed wills remain private after death.
What Happens if Somebody Dies Without a Will?
Where there is no will, there is no executor. Instead, certain relatives may apply for a different form of authority called letters of administration.
The person dealing with the estate is usually known as the administrator rather than the executor. The estate is then distributed under the intestacy rules rather than according to the wishes set out in a will.
Why Is Probate Important?
It can provide legal certainty and protection. In particular probate helps ensure:
- the correct people administer the estate;
- debts and taxes are dealt with properly;
- assets are transferred lawfully; and
- beneficiaries receive the inheritance they are entitled to.
Without probate, organisations dealing with the deceased’s assets would face significant legal risk. It therefore provides protection for:
- executors;
- beneficiaries;
- creditors; and
- financial institutions.
Common Misunderstandings About Probate
There are many myths about it, including the following;
- “We Have a Will So Probate Is Not Needed”
This is one of the most common misunderstandings. A will does not usually remove the need for probate.
- “Probate Means There Is a Dispute”
Most probate applications are entirely routine and uncontested. Obtaining probate does not necessarily mean there is disagreement within the family.
- “Probate Happens Automatically”
Executors usually need to:
- gather financial information;
- complete inheritance tax reporting;
- prepare the probate application; and
- deal with supporting documents.
The process requires active steps by the executors or their solicitors.
- “Everything Passes Under the Will”
Some assets pass outside the will altogether. Examples may include:
- jointly owned property;
- pension death benefits; and
- assets held in trust.
Do You Need a Solicitor for Probate?
No, not always. Some straightforward estates can be administered without legal assistance. However, professional advice from experienced probate solicitors is often sensible where:
- property is involved;
- inheritance tax may be payable;
- there are disputes;
- the estate is complex;
- beneficiaries disagree;
- business assets are involved; or
- the executors are unsure of their responsibilities.
Executors can become personally liable for mistakes in some circumstances, particularly if assets are distributed incorrectly or tax issues are overlooked.
Getting Legal Advice About Probate
Probate can be legally and practically complex, even where there is a valid will and no family dispute.
At Bonallack & Bishop, our highly experienced team of probate solicitors advise executors and families across England and Wales (as well as executors based overseas responsible for administration of an estate at home) on a variety of issues which include:
- obtaining the Grant;
- estate administration;
- inheritance tax matters;
- executor responsibilities;
- probate disputes; and
- contested wills.
We help guide executors through the process efficiently and provide practical advice tailored to the circumstances of the estate.
For expert advice, call our Probate Solicitors on FREEPHONE 0800 1404544 or one of our four local office numbers for FREE initial phone advice – with absolutely no strings attached.
Why Is Probate Needed if There Is a Will? – FAQ
Why is probate needed if there is a will?
A will explains who should inherit and who should administer the estate, but it does not itself give executors legal authority to deal with assets. Probate provides official confirmation that the executors can collect assets, sell property and administer the estate.
Do all wills have to go through probate?
No. Some estates do not require probate, particularly where assets are jointly owned, balances are small or there is no property in the deceased’s sole name. Whether probate is needed depends on the nature and value of the assets involved.
Can you sell a house without probate?
Usually not if the property was owned solely by the deceased. Buyers and the Land Registry normally require a grant of probate before ownership can be transferred or the property sold.
How long does probate take?
The timescale varies depending on the complexity of the estate, inheritance tax issues, property sales and whether disputes arise. Some estates are dealt with relatively quickly, while more complicated estates may take much longer.
What happens if probate is not obtained?
If probate is required but not obtained, executors may be unable to access bank accounts, sell property or distribute the estate. The estate administration can effectively become frozen.
Does probate mean the will is valid?
Probate generally means the Probate Registry has accepted the will for probate purposes and recognised the executors’ authority to act. However, wills can sometimes still be challenged in certain circumstances.
Is probate always needed when someone dies?
No. Probate is not required in every estate. Some assets pass automatically to surviving joint owners or may be released without probate if the amounts involved are small.
What is the difference between probate and a will?
A will is the document setting out who should inherit and who should administer the estate. Probate is the legal process giving executors authority to deal with the deceased’s assets and carry out the administration of the estate.