Do You Need Probate if There is a Will?

Probate – the legal right to manage someone’s assets after they die – and a will – a legal declaration of a person’s wishes regarding their estate after death – are separate, but closely linked, entities. You may assume that probate isn’t needed if there’s a will in place, but a will doesn’t necessarily mean that an estate doesn’t need to go through the probate process.
Read on to discover the differences between these two legal documents, as well as the time scales for probate, how to avoid it, and when it’s necessary, even if there’s a will.

Probate – the legal right to manage someone’s assets after they die – and a will – a legal declaration of a person’s wishes regarding their estate after death – are separate, but closely linked, entities. You may assume that probate isn’t needed if there’s a will in place, but a will doesn’t necessarily mean that an estate doesn’t need to go through the probate process.

Read on to discover the differences between these two legal documents, as well as the time scales for probate, how to avoid it, and when it’s necessary, even if there’s a will.

What is Probate?

Probate is the legal and financial process of managing someone’s money, property and possessions (their ‘estate’) after they die. This involves finding out if a will is valid and confirming who has the authority to administer the deceased’s estate.

If you’re a next of kin or executor of the will, you may have to apply to the court for Grant of Probate before any of the estate can be claimed, transferred or sold. If there’s a will, the Grant of Probate document can be used by you to settle debts, sell assets and access bank accounts of the person who has died. If there’s no will in place, a Grant of Letters of Administration is needed instead.

Does a Will Avoid Probate?

A will does not avoid probate, but rather guides it. Wills dictate how assets are distributed through the probate process.

A will provides instructions, but probate is often needed to legally validate the distribution, especially if the deceased’s estate is of high value or their bank accounts were solely owned.

When Probate is Required (Even With a Will)

Probate is necessary in specific situations.

• Sole-owned property: Probate is typically necessary if the deceased owned property in their sole name, property with someone else as ‘tenants in common’ or a share of a property through a trust. However, if the property was owned as ‘joint tenants’, it automatically passes to the surviving co-owner.
• Bank accounts above thresholds: Banks and building societies set their own limits for how much money they’ll release without a Grant of Probate, and this can range from £5,000 to £50,000, with most institutions setting their limits at the higher end of the scale.
• Certain accounts, such as investment accounts, brokerage accounts, and saving bonds, will go through probate if there’s no named beneficiary.
• Business assets: A business asset is likely to be one of the largest assets of the estate, and the legalities surrounding this topic are complex.
• 

All business assets, including property, equipment and goodwill, must be valued for probate, and the structure of the business significantly affects what will happen to the assets: sole proprietorships, partnerships and shares in a limited company typically require a Grant of Probate or Letters of Administration to transfer or sell.

When Probate May Not Be Needed

Probate is typically not needed in the following situations.

• Joint assets: Assets held jointly will automatically pass to the joint owner, not requiring a Grant of Probate unless the joint assets were held as tenants in common.
• Beneficiary-designated assets: Assets with named beneficiaries, such as life insurance policies, pension plans and ‘pay on death’ accounts, typically bypass the court process and automatically go to the named individual when a death certificate is provided.
• Small estate rules: No probate is required if the deceased’s estate is particularly small. Estates under £5,000 to £10,000 often avoid the probate process.
• Trust-held assets: Assets (property, investments and cash) held in trusts pass outside the deceased’s estate and don’t need probate. The legal title belongs to the trustees, who transfer these directly to the beneficiaries.

Role of the Executor

As an executor or administrator, your responsibilities can take months, sometimes years, to complete. Although this may seem daunting, not every duty will necessarily be relevant to your situation. Key responsibilities include:

• Registering the death and getting a death certificate
• Obtaining copies of the will
• Arranging the funeral
• Valuing the estate
• Managing property and post
• Sorting finances, including any debts
• Managing assets
• Paying any inheritance tax
• Applying for Grant of Probate
• Distributing the estate

Executors are personally liable for any inheritance tax due on the estate. If this needs to be paid, then this must happen before Grant of Probate. As an executor, you’re also liable for any capital gains tax and any losses incurred due to mistakes made throughout the administration. If you don’t keep detailed records, mistakes are more likely, which can lead to misdistribution and a beneficiary losing out.

Executors are also liable for any financial responsibilities of the deceased, and should ensure debts are paid from the available funds of the estate. You’re also liable for protecting the assets, including ensuring there is adequate insurance and that all relevant institutions are notified of the death.

Finally, executors are liable for any claims made against the estate, by relatives and financial dependents, which can be submitted up to 6 months following the probate being issued.

Probate matters for executors because it’s legal confirmation that they’re free to manage and distribute the estate. It validates the will so that executors can access accounts and settle debts and taxes. Probate also protects those responsible for an estate by providing legal authority and liability, helping to prevent disputes from beneficiaries or creditors.

How Long Probate Takes

Traditionally, the probate process has taken between 6 and 12 months to complete, with Grant of Probate taking 8 to 12 weeks to be issued. Straightforward estates have usually taken between 3 and 6 months. However, due to a government push in 2025, waiting times can now be as little as one week for online applications, with the average wait time being just 4 weeks.

Typical delays in probate include:

• Problems with the will, including it being lost, unsigned, invalid or legally unclear.
• HMRC and tax issues, such as delays in processing tax returns or managing complex, high-value estates.
• Finding and valuing assets, including waiting for valuations or dealing with property sales.
• Incomplete or incorrect documentation, including missing signatures, unclear information and incorrect valuations
• Disputes, between beneficiaries or executors.

Backlogs in court processing and tax clearing from HMRC can also cause delays, preventing the timely issue of Grant of Probate, particularly for complex cases.

Can You Avoid Probate?

There are ways you can avoid the probate process. The key methods are:

• Trusts: Lifetime trusts can be a useful tool in estate planning. By keeping yourself as the beneficiary for your property and listing other trustees, your executors can avoid going through probate. As you’ve not gifted your home, and it still belongs to you, there are also no negative tax implications.
• Joint ownership: ‘Joint tenants with right of survivorship’ (often known as joint ownership) allows assets and property to pass directly to the surviving owner, bypassing the probate process. This ensures a quick, private transfer of real estate or bank accounts, for example.
• Estate planning: Arrange for the management of your property and assets by drafting a comprehensive will, choosing a Power of Attorney (and if any children, a legal guardian) and setting up a trust. These legal documents ensure your wishes are fulfilled after you die and can prevent disputes between family members. Proper estate planning can often mean bypassing probate completely.
• Lifetime gifting: Assets you gift during your lifetime reduce your taxable estate and don’t pass through a will, avoiding the probate process altogether. Key strategies include small gift allowance, as you can give up to £250 per person per year, and annual exemption, allowing you to gift up to £3,000 per tax year, completely free of inheritance tax.

How can a probate solicitor Helps

Applying for probate can be a time-consuming, complex and frustrating process. Appointing a solicitor can help reduce stress and provide peace of mind. Solicitors can guide you through the stages of probate with expertise and compassion, allowing you more time to focus on moving forward. Call now at 08082747557 to discuss in detail. 

A probate solicitor can handle all filings, help with valuing the estate, submit inheritance tax forms to HMRC, collect the assets of the estate and assist with distribution. Their knowledge and experience prevents errors in paperwork and ensures everything is legally watertight, speeding up the probate process.

Losing a loved one is never easy, but relying on expert legal help can make the process a little simpler.