08 Dec 2023

What is probate?

Understand the process you'll need to go through when dealing with the estate of someone who has died

Grace WitherdenSenior writer

In this article

What is probate?
Probate explained
When is probate required?
How does probate work?
How long does probate take?
Your essential probate checklist
Who is the executor of a will?
Becoming an executor: frequently asked questions

What is probate?

Probate is the process of dealing with the estate of someone who has died, which generally means clearing their debts and distributing their assets in accordance with their will.

In our video, we explain the probate process and how to administer the estate of someone who has died.

Need help with probate? Download our free checklist from our legal experts to help you through the process.

Probate explained

Technically, 'probate' refers to getting permission to carry out the wishes within someone's will, though the term also applies to the whole process of settling someone's estate.

If you're responsible for executing someone's will, there are specific rules that set out how you notify the authorities and distribute the estate.

For permission to manage this process, you'll need to apply for grant of probate, or grant of confirmation in Scotland.

There are separate rules if someone dies without a will, otherwise known as dying intestate.

When is probate required?

Probate is usually needed in England or Wales when the person who died owned property or significant assets in their sole name.

You may not need probate if the person who died:

only had savings assets
owned shares or money with others – this automatically passes to the surviving owners unless they’ve agreed otherwise
owned land or property as joint tenants with others – this automatically passes to the surviving owners

Some banks will pay out a certain amount without the need to apply for probate. You should speak to your bank to find out how much money it will release when you die.

If a bank or financial institution has asked for a grant of probate or grant of letters of administration it's likely probate will be needed.

How does probate work?

The process for settling someone's affairs will depend on whether you choose to do it yourself, or appoint a professional to act on your behalf.

Appointing a professional can be a good idea and, if you are dealing with a complex estate, could be essential. See the guide to probate solicitors for more information on how to decide.

If you choose to administer the will yourself, you'll need to submit the relevant applications. We explain how to do this in our grant of probate gude.

You'll then need to gather all the deceased person's assets and distribute them to the beneficiaries.

This will involve notifying banks, building societies, and relevant government departments (such as the council and HMRC) of the person's death, settling up any accounts they hold, tallying up their assets and liabilities, paying off any inheritance tax that might be owed, and then distributing their assets.

Helpfully, most government departments can be notified in a single move, via the 'Tell Us Once' service, including councils, the DVLA, the Passport Office, the Department for Work and Pensions (if they were receiving benefits or a state pension), and HMRC. If the person was receiving Armed Forces Compensation Scheme Payments, Tell Us Once will also contact Veterans UK.

You can also notify some of the main high street banks, and other member organisations, at the same time using the Death Notification Service.

How long does probate take?

Once you've sent the necessary documentation, you should receive the grant of probate or letters of administration within eight weeks, although it can take longer if you need to send more information.

Recently, some people have had to wait 14 weeks or longer due to probate delays caused by a surge of applications since the beginning of the pandemic. This is the longest it has been since 2019.

As a result, the Justice Committee has launched a probate delays inquiry over concerns about the time it's taking and has submitted a call for evidence.

The worst delays impact applications that are stopped. When applications are stopped, they’re moved to a separate queue for processing, while waiting for the missing information or documents needed.

Probate grants that were stopped from April to June 2023 took 22 weeks on average to be issued, compared with 10 weeks for those that weren't stopped.

The probate service said it expects the average wait time for grants to fall to eight weeks by March 2024.

One of the best ways to minimise the impact of delays is to get probate underway as quickly as possible. See our guide to DIY probate, for a step-by-step explanation.

Find out more: probate inquiry launched over delays and new fees proposed

Your essential probate checklist

Find out precisely what you need to do with our downloadable probate checklist from the experts in our legal advice service.

Your essential probate checklist

Break down every stage of the probate process into manageable tasks with our free checklist.

Get the free checklist

If you need help or support our Which? legal probate experts are on hand to guide you, step by step, through the process. Join the legal advice service today from £9 a month (with a one off £29 joining fee). Find out more about the Which? legal advice service here.

Who is the executor of a will?

The person who administers probate is known as the 'executor', and is generally appointed in the deceased's will.

In most cases, the executor will be a family member or friend of the deceased. But it's also possible to appoint a professional executor, typically a solicitor or will writer.

Professional executors will expect to be paid from the proceeds of the estate for carrying out this duty. They normally carry out the entire probate process and receive a fee for this, too.

Becoming an executor: frequently asked questions

Often, your first experience with probate comes when a loved one dies, and you're named as their executor.

Below, we round up commonly asked questions from first-time executors.

In most cases, the person responsible for administering an estate will be chosen by the deceased and specified in the will.

Typically, it will be a close friend or family member, or a legal professional, such as a solicitor.

The deceased does not necessarily need to ask you, or seek your permission, before naming you as executor.

If there is no will, the deceased's estate will be subject to intestacy rules, and the estate will be administered by the next of kin.

If you're named as the executor of someone's will, you can decide whether to settle the estate yourself, or to appoint a professional to work on your behalf.

Alternatively, you can decline to be the executor - if, for example, you don't have time or you're too unwell.

In this case, you'll need to sign a Renunciation, essentially resigning from the position. This won't affect any entitlements you have as a beneficiary.

You can also have your 'power reserved' in some circumstances, which means you wouldn't be involved in the administration but you can choose to involve yourself if necessary at a later date.

Another beneficiary may have to step up, or a professional will need to be employed to take your place.

It's most common for a person to keep their will in their home, so the first step is to search the deceased person's house. Safes, filing cabinets and locked drawers are obvious starting points. Obviously, you'll need the permission of the deceased person's family before you do this.

If the will isn't kept at home, you can also ask their bank, as it may be stored in a safe deposit. Similarly, if they used a will-writing service, or a solicitor, it is possible that they hold the document.

And the government has a service that can help you find a will, here.

In the will, the deceased will name all the people who are due to receive assets from the estate - known as beneficiaries.

As executor, you need to take reasonable steps to try and contact everyone.

The executor is also responsible for finding creditors, which can be identified from outstanding bills, or loan agreements.

To find out more about your obligations as an executor, read our guide on DIY probate.

What if probate is contested?

There are several ways in which probate could be contested, which could prevent you from being given a grant of probate.

In some cases, a beneficiary or relative of the deceased may enter a caveat, which can prevent or delay probate being granted. This might happen if two people are entitled to apply for probate, or if there are questions about the legitimacy of the will.

When a caveat is placed on the estate, then the person who placed it will need to state their reasons within eight days. If this doesn't happen, the caveat will be removed.

Otherwise, it is a matter for the courts to resolve, so that probate can be granted to whichever party it deems appropriate.