Even when someone has a valid will in place, probate may be required to legally validate the document and ensure the executor has the authority to administer the estate. Here, we explain why a will might go to probate, what this involves, and what executors need to know about managing a deceased person's estate.

When a person dies, a process of estate administration begins. The person's assets are valued, their debts are paid, and their belongings are passed on to the people named in their will. However, before this can happen, the will often needs to go through a legal process called probate.

The probate procedure ensures that everything is handled properly and fairly by confirming that a person's will is a valid legal document. In this guide, we will explain why probate is necessary, when it is required, and how you can make the process as smooth as possible.

If you have any questions we have not answered, the expert Wills, Trusts & Probate team at Percy Hughes & Roberts Solicitors is happy to speak to you regarding your query and provide the legal services you need. You can contact us by completing the enquiry form or by calling 0151 666 9090.

What Is Probate?

Probate is the legal process that takes place after someone passes away to ensure that their estate - everything they owned, including property, money, and possessions - is dealt with correctly. 

If the deceased left a will, probate confirms the will’s validity and gives the executor the legal authority to manage the estate. This involves identifying and valuing the estate’s assets, paying any outstanding debts or taxes, and distributing what is left to the beneficiaries named in the will. Probate helps to make sure that the estate administration process is carried out according to both the deceased’s wishes (as outlined in their will) and the law. Without probate, banks, financial institutions, and the Land Registry may not release or transfer certain assets.

Why Do Wills Go to Probate?

A will outlines a person’s wishes for their estate. Probate is often necessary to legally confirm these wishes and give the executor named in the document the authority to act. Without probate, institutions like banks or the Land Registry won’t release assets or allow property transfers, which may be required by the terms of the will. Here are a few key reasons why probate is required:

• Probate confirms that the will is legally valid and the most recent version.

• It gives the executor the legal power to manage and distribute the estate.

• Banks, financial institutions, and property registries often require a grant of probate to release funds or transfer property, so it can enable the executor to manage the deceased person's financial affairs.

• Probate allows the executor to pay off any outstanding debts, taxes, or other money owed before the estate is passed to beneficiaries.

• The probate process can help to resolve any challenges or disputes related to the will or estate before they result in legal challenges.

By going through probate, the deceased person's estate can be managed in an organised and legal way. Probate acts as a safeguard to make sure that everything is done fairly and according to the deceased’s wishes.

If there is no will, an administrator will need to apply for letters of administration instead. This functions in a similar way, and grants the administrator the responsibility to manage the deceased's estate according to the rules of intestacy.

When Is Probate Required?

Not all wills need to go through probate, but it is typically required when the estate includes significant assets or property that need to be legally transferred. If the deceased person held assets solely in their name, probate grants the executors named in the will the legal responsibility for these assets. As such, it is often the only way to access and manage assets like property or a bank account. Whether or not probate is needed can depend on the size and structure of the estate.

Here are common situations where probate is required:

• Solely-owned property: If the deceased owned property, such as a house or land, in their name alone, probate is usually required to transfer or sell it.

• Bank accounts over the probate threshold: Banks and financial institutions have their own thresholds, usually between £5,000 and £50,000. If the balance exceeds this amount, probate is typically needed to release the funds.

• Stocks, shares, or investments: Assets like shares or investments held in the deceased’s sole name usually require probate to be transferred or sold.

• High-value personal possessions: Probate may be needed to distribute valuable items such as jewellery, vehicles, or art.

• Debts and taxes: If the estate owes debts or taxes, the probate process involves settling these before the remaining assets are distributed.

In summary, probate is required when an estate includes high-value assets or anything that requires legal documentation to transfer ownership.

How To Apply for Probate

Applying for probate involves a series of legal steps to grant the executor or administrator the authority to manage the estate. While it may seem daunting, following a structured process can make the task more manageable. Here is an overview of how to apply for probate:

• Check if probate is needed: First, determine whether probate is required based on the size and structure of the estate. If you are unsure, seek advice from a probate solicitor.

• Value the estate: You will need to calculate the total value of the deceased’s assets, including property, bank accounts, investments, digital assets, life insurance policies and personal belongings. You also need to identify and account for any outstanding debts, such as loans, mortgages, or bills.

• Complete the Inheritance Tax forms: If the estate is above the current inheritance tax threshold, you must report the value of the estate to HM Revenue and Customs and pay any Inheritance Tax due. Even if no tax is payable, you still need to submit the relevant forms.

• Submit the probate application: Apply for probate online or by completing the appropriate forms, which include details about the deceased’s estate and the executor’s authority. You will also need to submit the original will (if there is one) and the death certificate.

• Pay the probate fee: A probate fee must be paid when submitting the application. The amount varies based on the value of the estate, but estates valued under a certain threshold may be exempt.

• Receive the Grant of Probate: Once the application is processed and approved, the Probate Registry will issue a Grant of Probate (or Letters of Administration if there is no will). This document gives the executor legal authority to manage the estate.

• Administer the estate: After receiving the grant, the executor can begin collecting assets, settling debts and taxes, and distributing the remaining estate to the beneficiaries in accordance with the will or intestacy rules.

The probate process can be complex, time-consuming, and emotionally challenging, especially during a period of grief. At Percy Hughes & Roberts, our experienced probate solicitors are here to help. We can guide you through every step, from valuing the estate and completing Inheritance Tax forms to applying for probate and managing the estate. We can also advise you on avoiding probate in cases where it is not necessary.

When Can Probate Be Avoided?

In certain circumstances, probate may not be necessary. In these cases, the estate can be administered without going through the formal legal process. Whether or not you can avoid probate depends largely on how the deceased’s assets were held and the value of their estate.

For example, if the deceased owned assets like property or bank accounts as a joint owner alongside someone else (such as a spouse or civil partner), these typically pass directly to the surviving owner through the right of survivorship. Probate is usually not required for those assets.

Many financial institutions will release funds without requiring a Grant of Probate for smaller estates. Whether an estate is considered small depends on the threshold set by each bank or financial institution separately. This varies between £5,000 and £50,000, but if the total value of the assets in the account fall below the threshold, you may not need to follow the probate process to gain access.

Assets such as Payable on Death or Transfer on Death accounts, as well as life insurance policies or pensions with named beneficiaries, can also bypass probate entirely. These assets transfer directly to the named beneficiaries upon the account holder’s death.

Additionally, if the deceased had placed assets into a trust, those assets can avoid probate. The trust structure allows assets to be distributed to beneficiaries without the need for court approval.

While probate can often be avoided in these situations, it is crucial to review the specifics with legal professionals to ensure everything is handled correctly.

How Can Percy Hughes & Roberts Help? 

Navigating the probate process can be challenging, especially during an already difficult time following the loss of a loved one. Whether you are managing a straightforward estate or dealing with more complex matters, understanding when probate is required, how to apply, and how to avoid common pitfalls is essential.

Having the right legal support can make the process smoother and less stressful for everyone involved. At Percy Hughes & Roberts, our expert probate solicitors are here to guide you through every stage of the process, meet all the legal requirements and handle the estate with care and efficiency. Whether you need help applying for probate, managing Inheritance Tax, or handling disputes, our team is ready to assist.

If you require legal advice in relation to the above or need help with anything else to do with Wills, Trusts and Probate, Percy Hughes & Roberts can help. If you would like to contact one of our expert wills, trusts and probate solicitors you can do so by calling 0151 666 9090 or by completing the “Get in touch” form on this site.