What is probate?

22 January 2015 ( 28 July 2016 )

A simple guide to probate, grants of representation and dealing with a dead person's estate.



What is probate?

Probate is a term used when referring to the process of obtaining the legal right to deal with a deceased person’s estate and affairs.

When someone dies, the task of sorting out their money, property and assets passes to an executor, as named in the Will.

If they die without naming an executor, without a valid Will, or the executor is either unwilling or unable to do the job, it passes to family members in a specific order. The person that takes up the job is known as the administrator.

What is a Grant of Representation?

If you find yourself responsible for winding up someone’s estate, you’ll probably need to get a Grant of Representation first. 

This document affords you the legal right required before you can take control of the estate as the ‘personal representative’ and set about complying with the Will or intestacy rules.

A Grant of Representation isn’t usually required if the estate passes to the surviving spouse or civil partner and it was held in joint names, such as a savings account or mortgage, or where the estate doesn’t include land, property or shares.

If you are named an executor in the Will, you must apply for a Grant of Probate.

If you are an administrator, you must apply for Letters of Administration, which give you the same rights as an executor. 

You may not need to apply for Letters of Administration in certain circumstances, such as if the deceased left only cash and personal possessions.

Can you challenge a Will if you believe it is unfair?

How do you apply for a Grant of Representation?

Applying for a Grant of Representation can take several weeks, but it’s essential. 

First you must complete a probate application form, or a ‘confirmation’ form if the deceased lived in Scotland. 

You can instruct a solicitor to help with the application process or call HMRC’s probate helpline on 0300 123 1072 for assistance.

The next step is to establish the estate’s value, in order to see if there will be inheritance tax to pay. 

To satisfy HMRC, you’ll have to complete the appropriate inheritance tax form, which depends on whether you believe a tax payment is due. If your calculations are accepted and inheritance tax applies, you’ll probably have to pay at least some of the total bill before a Grant of Representation is issued.

The appropriate forms are sent to the Probate Registry, along with an official copy of the death certificate, the original Will plus three copies, and any codicils (official documents showing changes to the will). 

If the estate is worth more than £5,000, there’ll also be a £215 application fee to pay.

If your grant application is successful, you will need to swear an oath at either the office of a commissioner for oaths, typically a solicitors, or at your local probate office. After this, you can expect to receive the grant – and any copies requested – within 10 working days.

How do you start administering the estate?

As a personal representative, you can start winding up the estate by sending a copy of the grant to any company that holds the deceased’s assets, such as a bank or building society, and arranging for a cash transfer to one of your accounts.

Ideally, you should open an executor account, which banks offer for the purpose of bringing together all savings held in other accounts, as well as the proceeds from the sale of any property, belongings and assets that were not bequeathed in the Will. 

This money, along with any refunds, life insurance payouts and pension payments paid to the estate should be used to pay off the deceased’s debts, any funeral expenses and your own reasonable costs incurred as personal representative.

Whatever remains after debts and taxes have been paid is the true value of the estate, which can now be distributed, along with specified property, assets or belongings, in accordance with the Will. If there is no Will, you distribute the estate in accordance with the law of intestacy. 

Find out more about intestacy

What happens if there are joint accounts or shared property?

Many people will die with some form of joint account or shared property, which the personal representative must identify. 

With a joint account, the holdings automatically transfer to the other party, as is the case with properties owned under a joint tenancy, known as joint ownership in Scotland. 

If the property was owned under a tenancy in common arrangement – common ownership in Scotland and coparceners in Northern Ireland – the Will or law of intestacy determines who inherits the deceased’s share.

Getting professional help

No one would say the job of personal representative is easy. It’s a task most of us won’t welcome, as it usually comes at a time of great sadness and stress, and carries a huge amount of responsibility.

The opinions expressed are those of the author and are not held by Saga unless specifically stated.

The material is for general information only and does not constitute investment, tax, legal, medical or other form of advice. You should not rely on this information to make (or refrain from making) any decisions. Always obtain independent, professional advice for your own particular situation.