What is probate?

If a person left a will, the people appointed as executors in the will must apply to the Probate Registry for a grant of probate. This grant gives them the legal right to deal with or ‘administer’ all the property and other assets belonging to the person who has died. These collective assets are called the deceased’s estate.

If a person dies without leaving a valid will, they are said to have died intestate. In this event, there are specific rules that decide who receives what. As a first stage, the next of kin will have to apply to the Probate Registry for a grant of letters of administration to deal with the deceased’s estate.

Grant of representation

A grant of representation is the term used to describe all three types of grant that can be given by the Probate Registry. A grant of representation is the term used to describe all three types of grant that can be given by the Probate Registry. The three grants are as follows:

1. A grant of probate which is granted when the deceased person left a valid will;

2. A grant of letters of administration which is granted when the deceased died intestate (meaning that they they died without a will); and

3. A grant of letters of administration with a will which is given where the deceased left a will but no executors were appointed.

Personal representatives

Personal representatives are the people appointed to administer the estate and who will make the application the Probate Registry. The term includes both executors (where there is a will) and administrators (where there is no will).

A small point that often causes confusion is that the grant of letters of administration, made when someone dies without a will is often referred to as “probate.” Strictly speaking, a grant of probate is only issued when there is a will.

Assets frozen on death

The reason you shouldn’t delay making the application for the grant of representation is that all a person’s assets, including their bank and building society accounts, are automatically frozen on their death. This is the case whether or not they left a will.

This means that a problem often arises where a deceased’s dependents have no access to any money on which to live day to day. It is common practice if an account contains only a relatively small amount of money (usually less than £5,000) for the bank or building society to release this sum to the next of kin before the grant (of probate or administration) has been made.

Furthermore, most banks will allow payment to be made to a funeral director to cover the costs of the funeral before the grant is available.

However, if the deceased had a joint bank account then the other person named on the account will be automatically entitled to the money in the account by right of survivorship. They will be able to carry on using the account as ownership of the contents automatically passes to them on the other person’s death.

Law varies in different parts of the UK

The one other point to note is that the law and procedure relating to grants of probate and grants of letters of administration varies in different parts of the United Kingdom.

Is probate always required?

In England and Wales

The personal representatives will not usually need to make an application for a grant of representation if the whole estate passes to the deceased person’s surviving spouse or civil partner because it was held in joint names (for example a bank account) and it doesn’t include land, property or shares.

Normally, banks and building societies will be prepared to pay the money to the person or people entitled to receive it without seeing the grant of representation if the account held with them contained less than £10,000.

You will need to contact the bank or building society and inform them of the situation. At the least they are likely to ask to see a copy of the death certificate which you will have after the death has been registered. The deceased’s estate can then be distributed immediately.

In Scotland

The executors will not need to apply for a grant of confirmation (this is the Scottish equivalent of the grant of representation) if everything the deceased person owned was held in joint names with their surviving spouse or civil partner or if the estate only consists of accounts with banks or building societies that are prepared to pay the money to the person or people entitled to it without seeing the grant.

This usually only occurs if the estate is a ‘small estate’ meaning that it has a total (or gross) value of up to and including £36,000. In this case, the deceased person’s estate can be distributed immediately. The threshold for a small estate of £36,000 is subject to change from time to time and you should check the current level with either your local Citizens Advice Bureau or with the Sheriff Clerk.

You will need to contact the bank or building society and inform them of the situation. At the least they are likely to ask to see a copy of the death certificate which you will have after the death has been registered. The deceased’s estate can then be distributed immediately.

In Northern Ireland

The executors will not need to apply for probate if everything the deceased person owned was held in joint names with their surviving spouse or civil partner or if their only assets were bank or building society accounts that contained less than £10,000.

The bank or building society may be prepared to pay the money to the person or people entitled to it without seeing the grant.

You will need to contact the organisations and inform them of the situation. At the least they are likely to ask to see a copy of the death certificate which you will have after the death has been registered. The deceased’s estate can then be distributed immediately.

What is the process?

The process of obtaining a grant of representation varies in different parts of the UK. If you area personal representative of a person who has died in England or Wales you will need to go through a seven stage process to obtain the grant.

The processes in Scotland and Northern Ireland are both similar but differ in certain respects.

Seven stage process in England and Wales

1. Value the estate

As a first step you will need to value the estate. This will establish whether or not a grant of representation is required. For further information, please see the separate section of Lasting Post called Valuing the Estate.

2. Complete the documentation

If a grant of representation is required, you will need to complete the appropriate probate application form. You will also need to complete the correct Inheritance Tax form. All probate application forms and Inheritance Tax forms can be obtained from the Probate Service or HM Revenue & Customs. To access all the forms, please click here.

3. Lodge the documentation

You can send the application form to either the Principal Registry (in London) or one of the Probate Registries. You will need to send the Inheritance Tax form to HM Revenue & Customs. To find out where your nearest Probate Registry is located, please click here.

4. Pay any Inheritance Tax liability

You will then need to pay any Inheritance Tax liability that is due on the estate. This will need to be done before you receive the grant of representation. For further information on paying the Inheritance Tax liability, please see the separate section of Lasting Post called Financial considerations.

5. Swear an oath

The Probate Registry will send the oath to be sworn to the first personal representative named in the application form. All the personal representatives will need to swear the oath in front of a commissioner for oaths (usually a local solicitor) or at a Probate Registry or local probate office. After the oath is sworn, you will need to send all the documents duly completed back to the same Probate Registry.

6. Receive the grant of representation

Once the Probate Registry has completed its work and is satisfied that the application is in order, you will receive the grant of representation by post.

7. Pay liabilities and distribute the estate

Your final job, as one of the personal representatives, will be to pay any liabilities owing by the estate and then distribute the rest of it to the beneficiaries.

Further help

For more information on the process of obtaining a grant of probate (where the deceased person left a will), please see the section of Lasting Post called If there is a will.

For more information on the process of obtaining a grant of letters of administration (where the deceased person didn’t have a will), please see the section of Lasting Post called If there’s no will.