What is Probate and Do You Need to Obtain It?

Probate is a legal process that involves administering the estate of a person who has passed away. It includes validating the deceased’s will, settling debts and taxes, and distributing the remaining assets to the beneficiaries. Understanding probate is crucial for anyone dealing with the estate of a loved one or planning their own affairs.

What Does Probate Involve?

1. Validating the Will: If the deceased left a will, the first step in the probate process is to verify its authenticity. This often involves applying to the Probate Registry for a grant of probate, which officially recognises the will and the appointed executor.

2. Assessing the Estate: Once the will is validated, the executor must take inventory of the deceased’s assets and liabilities. This includes property, bank accounts, investments, shares, pensions, trusts and personal belongings.

3. Settling Debts and Taxes: The executor is responsible for paying off any outstanding debts, taxes and funeral expenses from the estate’s assets. This may involve filing a tax return for the deceased if necessary.

4. Distributing Assets: After debts and taxes have been settled, the executor distributes the remaining assets according to the instructions outlined in the will.

Do You Need to Obtain Probate?

Whether you need to obtain probate depends on the specifics of the estate:

1. Value of the Estate: If the estate is modest and primarily consists of jointly owned property or assets that automatically pass to the surviving partner (like life insurance, some property or pensions), probate may not be necessary.

2. Nature of the Assets: Some financial institutions may require a grant of probate before they release funds or transfer assets. This is often the case with bank accounts, property, and other investments. It usually depends upon the sim involved as to whether a grant of probate is needed and each institution  has a different policy, there is no fixed sum but as a general rule most institutions will release sums less than £30,000 without probate being required.

3. Presence of a Will: If there is a will, it typically must go through probate to ensure the deceased’s wishes are respected. If there is no will (intestacy), the estate will need to be administered according to intestacy rules, which involve a different legal process.

4. Complexity of the Estate: For larger or more complicated estates, probate is always recommended and usually necessary to facilitate the legal distribution of assets and protect the executor from potential disputes or legal issues.

How to Apply for Probate

Often, executors were close to the deceased. This can mean that the whole process of obtaining probate can be daunting. On the other hand, some executors welcome the opportunity to focus their attention on the practicalities as part of the grieving process. If it is all becoming too much from a practical or emotional point of view then obtaining legal advice and representation can help. More information on the solicitor’s role in the probate process can be found in our blog here.

1. Gather Documentation: Collect the deceased’s will, death certificate, details of assets, debts and any other relevant information.

2. Complete the Application: Apply for a grant of probate through the Probate Registry. This usually involves filling out the necessary forms and paying the appropriate fee and paying any inheritance taxes which may be due.

3. Wait for Approval: Once submitted, the application will be reviewed, and if everything is in order, the grant of probate will be issued.

4. Administer the Estate: After obtaining probate, the executor can begin administering the estate, paying debts and distributing assets as per the will’s instructions.

Conclusion

Probate is an essential process for managing the estate of a deceased individual in England and Wales. Whether it’s necessary depends on the size and complexity of the estate and the presence of a will. Understanding the probate process ensures that the deceased’s wishes are honored while providing clarity for the family and beneficiaries involved. If you’re unsure about whether you need to obtain probate, consulting with a us to help guide you through the process and provide peace of mind during a challenging time.

Alexander JLO Solicitors have decades of experience of assisting loved ones on both the practical and legal aspects at, what is usually, a very difficult time. Why not contact us for assistance for free, no obligation consultation and see what we can do to help.

This blog was prepared by Alexander JLO’s senior partner, Peter Johnson on the 11th February 2025 and is correct at the time of publication. With decades of experience in almost all areas of law Peter is happy to assist with any legal issue that you have. His profile on the independent Review Solicitor website can be found here.