When someone dies, it is often necessary to apply for probate. What is probate? When is probate needed? Who can apply for probate? What happens if someone dies without a will?

This is a freeview ‘At a glance’ guide to probate.

What is probate?

Probate is the legal right to deal with someone’s estate, such as their property, money and possessions, when they die.

  • Probate confirms the authority of the personal representatives and provides documentary evidence of that authority to third parties such as banks. Probate also confirms the validity of the will.
  • Applications for probate may be made online, or by post, using form PA1 and should be accompanied by the original will and any codicils.

When is probate needed?

Probate is not always necessary when someone dies. It will depend on the nature and size of the assets held by the deceased.

Some assets may not require probate in order to be realised. Other assets may not form part of the deceased’s estate for probate purposes.

Examples of assets for which probate may not be needed can include:

Who can apply for probate?

The identity of the persons who can apply for probate depends on whether the deceased left a valid will, or not.

  • If there is a will, the executors named in it (or in any codicil to it) can apply for probate.
  • If there is no will, the closest living relative can apply for probate.

Where more than one executor is named, it is necessary to agree on who will make the application for probate. Probate can only be granted to a maximum of four persons.

If a named executor is unable to apply for probate due to a mental health condition or impairment, a medical professional will need to complete form PA14 before anyone else applies.

  • The will should be checked to establish whether the executor has a named substitute and whether the conditions for substitution have been met. This would also be the case where a named executor has died. 

If there are no other executors and no substitute, another ‘entitled’ person will need to apply for probate.

  • If the executor died, this is any beneficiary of the will who wishes to apply.
  • If the executor has a mental health condition or impairment, the application may be made by (in order):
    • The executor’s court-appointed deputy.
    • Someone with power of attorney for the executor.
    • A beneficiary of the will.

What if I do not want to be an executor?

If you do not want to be an executor, you can:  

  • Hold ‘power reserved’.
    • This means that where more than one executor is named in the will, you choose not to apply for probate immediately but reserve the right to apply later.
  • Appoint someone else to apply for probate, by filling in form PA11, where:
    • You are the only executor named in the will.
    • There are other executors named in the will, but they are holding power reserved or have renounced their right to apply.
  • Give up your right to apply, by filling in form PA15. This is known as renunciation.
    • Renunciation is not possible once an executor has received probate or if they carry out an act which suggests they intend to accept the appointment.  

What if there is no will?

If the original will has been lost, it may be possible to apply for probate using form PA13.

If the deceased did not leave a will, as above, the most ‘entitled’ person can apply to become the administrator of the estate.

  • This will be the closest living relative.
  • If the closest living relative does not want to administer the estate, they can either appoint someone else to do it or permanently give up their right to administer the estate.

The rules of intestacy determine who inherits someone’s estate if they do not leave a will. Entitlement depends on what relatives survive the deceased and the size of the estate in question.

The intestacy rules can be complex, depending on who survives the deceased. The rules should be reviewed in detail and applied to the facts of each case.

Broadly, in England and Wales, where there is a surviving spouse or civil partner:

  • If the estate is worth less than £322,000, the spouse or civil partner will inherit all of it.
    • This is also the case if the estate is worth more than £322,000 and there are no children, grandchildren or great-grandchildren: the spouse or civil partner will inherit all of the estate.
  • If the estate is worth more than £322,000, and there are children:
    • The spouse or civil partner inherits up to £322,000 worth of assets, all of the deceased’s personal possessions and half of the remainder of the estate.
    • The other half of the remainder of the estate is divided equally between the children.
      • If any of the children died before the deceased, their children (grandchildren of the deceased) will inherit in their place.
      • If any of these grandchildren died before the deceased, their children (great-grandchildren of the deceased) will inherit in their place.

For deaths prior to 26 July 2023, the statutory legacy was £270,000. It increased to £322,000 for deaths on or after that date. 

Inheritance Tax (IHT)

When applying for probate, it is necessary to estimate and report the estate’s value for IHT purposes.

  • How the estate’s value is reported will depend on whether the estate is an ‘excepted estate’, or not.
  • Until any IHT is paid to HMRC, probate cannot be granted.

See At a glance: How to calculate Inheritance Tax

As announced at the 2024 Spring Budget, from 1 April 2024 personal representatives of estates will no longer need to have sought commercial loans to pay IHT before applying to obtain a ‘grant on credit’ from HMRC. See Probate: Grant on credit

From 17 January 2024, when applying for probate in England and Wales, it is no longer necessary to complete an IHT421 Probate Summary to submit with the IHT400.

  • HMRC will send a letter confirming receipt and processing of the form IHT400 will provide a unique code with the details of the estate values which will be needed to make a probate application. 
  • This unique code should be used to apply for probate using the HM Courts and Tribunals Service (HMCTS) online portal.
  • Applications for probate where an IHT400 has been submitted to HMRC will not be possible without the unique code and estate values.  

What probate fees are payable?

Probate application fees depend on the size of the estate.

  • For estates of £5,000 or less, there is no fee.
  • For estates exceeding £5,000, the fee is £273. Following consultation, this is expected to increase to £300. 

Extra copies of the probate document are charged at £1.50 each.

What happens after applying for probate?

After applying for probate, the application will be reviewed by the Probate Service.

On approval, the will and any codicils will be kept by the probate registry and become a public record.

The applicant will receive a document which allows them to start administering the estate. This will be:

  • A grant of probate, if the deceased left a will.
  • Letters of administration, if the deceased did not leave a will.

Where can I access probate records? 

The gov.uk website includes a search facility to find probate records for individuals who died after 1857. Searches are also possible by post, using the form PA1S. 

The service can be used to: 

  • Search for a probate record in England and Wales.
  • Check if probate has been issued.
  • Check the type of probate issued.
  • Order a copy of a probate record (including a will, if there is one).

Copies of probate records ordered online cost £1.50.

Records are available online approximately 14 days after probate has been issued.

Useful guides on this topic

Estates: Income Tax and Capital Gains Tax
How do executors deal with income and capital gains arising on the deceased’s estate? What allowances and reliefs are available?

Pensions: What happens when you die?
What happens to your pension when you die? What tax is due by your estate? Will your family have to pay Income Tax if they receive your pension going forward? What can you do to mitigate any tax charges? 

IHT: Estate planning checklist
This checklist covers some of the essential planning points that taxpayers should know when planning for their estate and Inheritance Tax (IHT).

Client Briefing: Making gifts & IHT
What gifts can you make without triggering Inheritance Tax (IHT)? What are the rules on making tax-effective gifts for IHT purposes?

Trusts & Estates: What’s New 2023/24
HMRC's latest Trusts and Estates newsletter contains some useful information. Here is our enhanced version together with a reminder of upcoming and recent changes. 

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