Applying for Probate with or without a Will

Author:
Grace Serwanga
Partner, Private Client & Court of Protection
Date:
30/04/2019

The phrase “applying for Probate” is used to describe the process of applying for the right to deal with the assets of someone who has died. The person who makes the application for Probate obtains a Grant of Representation. However, the type of Grant of Representation will differ depending on whether or not the deceased person has left a Will.

Below we provide basic information about Applying for Probate with a Will and Applying for Probate without a Will in England or Wales.

Probate can easily become very complicated, particularly after the death of a loved one, which is why our Probate Solicitors offer a Grant of Probate Application Service and our Full Probate Service which deals with the complete Probate process on your behalf.

For free initial legal advice get in touch with our Probate Solicitors.

Call us on 08002605010 or request a callback and we will help you.

Applying for Probate with a Will

If the deceased left a Will setting out their wishes, they are likely to have appointed Executors to deal with the distribution of their Estate. It’s the Executors’ responsibility to apply for a Grant of Representation, known as the Grant of Probate, which will formalise their authority to deal with the deceased’s assets, thereby enabling them to administer the Estate.

Administering an Estate includes:

      • Collecting in all assets of the deceased
      • Paying any liabilities or debts
      • Distributing the balance according to the wishes of the deceased as set out in the Will.

There are certain circumstances when a Grant of Probate won’t be required in order to administer the deceased’s Estate. A Grant of Probate will always be needed when the deceased leaves one or more of the following assets:

        • Stocks or shares
        • Certain insurance policies
        • Property or land held in their own name or in certain circumstances when property or land is held jointly

A Grant of Probate may not be needed if the deceased has owned everything jointly and upon their death everything automatically passes to the surviving owner e.g. spouse.

Applying for Probate without a Will

If the deceased person didn’t leave a valid Will or even make a Will, one or more close relatives (no more than four) of the deceased can apply for Probate. In this case, the Grant is known as a Grant of Letters of Administration and instead of being known as an Executor, you’d be known as an Administrator.

The Grant of Letters of Administration works in exactly the same way as a Grant of Probate and provides the Administrator/s with the authority to deal with the deceased’s assets.

No Executors Named in a Will

It’s possible that the deceased may have left a Will but not made an effective appointment of any Executor/s. This can arise when:

          • The appointed Executors die before the deceased and there are no replacement Executors
          • The Executors don’t wish to act (they can renounce their appointment)
          • The Will doesn’t appoint any Executors.

As is the case when the deceased hasn’t left a Will, one or more close relatives can apply for Probate. In this case, they would be provided with a grant called Grant of Letters of Administration with Will Annexed.

Inheritance Tax

Once the position regarding who’ll be responsible for the administration of the deceased’s Estate has been established, the issue of Inheritance Tax will need to be dealt with before applying for Probate.

The Executors or those who wish to apply for the grant will need to provide the applicable IHT tax form confirming the Inheritance Tax due on the Estate.

Inheritance Tax Threshold

Inheritance Tax will be payable if the deceased’s Estate (including property, money and possessions) is worth more than £325,000 when they die. This means that Estates worth up to the value of £325,000 will be taxed at 0% IHT and any Estate value above this amount will be taxed at 40% IHT (there are some exceptions to this).

Inheritance Tax Forms

If there is Inheritance Tax to be paid, the Executors/Administrators will need to complete the IHT400 form, which may require further forms to be filled out to accompany it. If there is no Inheritance Tax to be paid, form IHT205 will need to be completed.

Requirements when Applying for Probate 

An application for Probate must be verified by a signed Statement of Truth. This statement confirms that the person making the application believes the facts stated in the document to be true and accurate. This is usually done in the form of a witness statement which will state the following:

            • The deceased’s details: full name, address, date of birth and date of death
            • The Executors/Administrators full names and addresses
            • The basis of their authority to apply and take the grant

The application will then need to be sent to the Probate Registry which includes:

                • Signed witness statement
                • The Will (if applicable)
                • Applicable Tax forms
                • Probate Court fee for the application: if the Estate is valued at over £5,000 the current fee is £215 for a personal application or £155 for an application made by a Solicitor. There is no Probate application fee if the Estate is valued less than £5,000.

For information about Contentious Probate see Contest a Will.

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