What is probate & what are the main reasons for it?

When someone passes away, managing their estate can be a complicated and emotionally charged process, particularly when it involves selling inherited property.

One of the key legal procedures in this process is probate, which grants authority to an executor or administrator to handle the estate’s assets, including selling a house.

The process can be lengthy and involves multiple steps, such as identifying assets, paying Inheritance Tax and eventually distributing the remaining estate to the beneficiaries.

On this page, we will explore the probate process in detail and discuss how and when you can sell a probate property, while also offering insights into the most efficient methods for doing so.

What is probate?

Probate is the legal process of managing and distributing a deceased person’s estate. This process involves confirming the validity of their will and authorising someone — typically the executor named in the will — to handle the estate’s assets. If no will exists, a close family member may apply to administer the estate.

The executor or next of kin will need to apply for a legal document, either a Grant of Probate (if there’s a will) or a Grant of Letters of Administration (if there’s no will), to prove their right to manage the estate. These documents give the executor or administrator the legal authority to:

• Settle any outstanding debts.

• Sell, transfer or distribute assets such as property, money and personal belongings.

• Sign contracts related to the estate such as selling a house.

The probate process can take several months, especially if taxes are owed on the estate. Once the Grant of Probate or Grant of Letters of Administration is issued, the executor or administrator can fully manage and distribute the estate as outlined in the will or by law.

What are the main reasons for probate?

A Grant of Probate is a court order issued by the Probate Registry that empowers the executor of a will or, in cases where no will exists, the estate administrator, to collect the deceased’s money and assets and distribute them according to the will or the rules of intestacy.

Probate will usually be required in the following situations:

In some cases, probate may not be required, especially if the assets are held jointly, where the ownership passes directly to the surviving owner. If you fall under this category, then you will need to inform the Land Registry by submitting From DJP to update the Title Deeds.

Who is responsible for applying for probate?

In the UK, the responsibility for applying for probate falls to the executor of the deceased’s will. The executor is the individual named in the will to manage the deceased’s estate, which includes their property, money and possessions. If there is no will, or if the named executor is unwilling or unable to act, an administrator is appointed, usually a close relative of the deceased, to take on similar duties.

The executor or administrator must apply for a Grant of Probate (or a Grant of Letters of Administration in intestate cases) to gain the legal authority to deal with the estate.

Is it only the executor who can apply for probate?

While the executor has the primary right to apply for probate, they can also authorise someone else to apply on their behalf, such as a solicitor or another trusted person. In some cases, if there are multiple executors named in the will, they may choose to apply jointly or nominate one executor to take the lead.

If no executor is named, or if the executor does not wish to act, a family member or another eligible individual can apply to become the administrator of the estate. In such cases, the court will determine who has the right to apply.

Do you need a solicitor to handle the probate process?

You do not legally need to have a solicitor to handle the probate process. Executors or administrators can manage probate themselves by applying directly to the UK Government’s Probate Registry. 

However, handling probate is extremely time consuming, particularly if the estate has multiple assets, inheritance tax liabilities or contentious matters.

Hiring a solicitor may be beneficial in the following situations: 

• The estate is large or complicated.

• There are disputes among beneficiaries or claims against the estate.

• Inheritance Tax is payable, and calculations are complex.

• The deceased had overseas assets or property.

• The executor feels uncertain or overwhelmed by the process.

Solicitors charge for probate services, either as a fixed fee, a percentage of the estate’s value or an hourly rate. Executors should compare costs and services before deciding whether to use a solicitor.

The probate house sale process

If you’ve never encountered probate before, it can seem overwhelming. But don’t worry – we’ll guide you through each step of the process, explaining what happens and why, so you can get a clearer understanding of the probate process.

Step 1: Identifying assets and liabilities

The first step in the probate process is to identify all of the deceased’s assets and liabilities. Assets include everything the deceased owned, such as property, bank accounts, investments, personal possessions and shares. Liabilities refer to any outstanding debts or obligations, such as mortgages, loans and unpaid utility bills.

This initial stage is vital, as it allows for a full understanding of the estate’s value. Specialist wills and probate solicitors will usually assist with this, ensuring all financial aspects are accounted for.

Once the total value of the estate is determined, you can assess whether it exceeds the threshold for Inheritance Tax, which we’ll discuss in Step 2.

In addition to identifying the estate’s value, the solicitor will also determine who is entitled to the deceased’s assets. This is done by reviewing the will (if there is one), or in the absence of a will, following Intestacy Laws to identify the beneficiaries.

Step 2: Managing Inheritance Tax and applying for probate

If the estate’s value exceeds the Inheritance Tax threshold of £325,000, it’s time to arrange for payment of any applicable taxes. Even if the estate is below the threshold and no tax is due, an Inheritance Tax return must still be filed to avoid any penalties.

At this stage, your solicitor will also apply to the Probate Registry for a Grant of Representation. This document is important as it proves that the person applying has the legal right to administer the estate. If there is a will, this document is called the Grant of Probate; if there’s no will, it’s called the Grant of Letters of Administration.

Step 3: Waiting for the Grant of Probate

Once you’ve applied for the Grant of Probate (or Representation), the next step is to wait. The probate registry will review the application and, provided everything is in order, issue the grant. This part of the process can take several weeks or even months, depending on the complexity of the estate and the workload of the probate office.

Once the grant is received, the executor or administrator can take full control of the estate. This allows them to sell assets, such as property, and settle any outstanding liabilities like debts and bills, provided there are sufficient funds. The probate property can be marketed and sold, and the proceeds from the sale are then included in the estate.

Step 4: Preparing estate accounts

With most of the estate now liquidated or transferred, the solicitor will prepare a Statement of Accounts. This document details all the money coming into and going out of the estate, including asset sales, debt repayments, and administrative costs.

This is also the stage where any remaining assets are prepared for distribution to the beneficiaries. The estate accounts will be sent to the executors for final approval, ensuring that everything is accurate and accounted for.

The sale of any properties is often completed during this phase. The funds from the sale are added to the estate’s assets, which will be included in the final Statement of Accounts. This statement will list the property sale as part of the estate’s income, alongside any debts that were settled with the proceeds.

Step 5: Distributing the assets

Finally, before the assets can be distributed, a final check will be done to ensure no challenges or disputes have been raised against the estate. If no disputes exist, the remaining assets can be distributed to the terms of the will or, if no will exists, following the Rules of Intestacy.

The property sale should ideally be finalised before Step 5, when the remaining estate assets are distributed to the beneficiaries. This ensures that the proceeds from the property sale are divided appropriately according to the will or intestacy laws.

Once all the beneficiaries have received their share of the estate, the probate process is complete!

How fast is probate?

The probate process usually takes between 6 and 12 months, though the exact timeframe can vary depending on the size and complexity of the estate. Every case is unique, so factors such as the presence of a will, the intricacy of the estate, and how efficiently the executor can manage their responsibilities will affect the timeline.

Applying for a Grant of Probate: 4-12 weeks

The process of applying for a Grant of Probate usually takes 4 to 12 weeks. Several factors influence this, including:

• Whether the will includes a detailed inventory of the deceased’s assets.

• The size and complexity of the estate.

• How well the executor understands the estate and gathers the necessary documents.

The first step involves obtaining date of death valuations for all assets, which can take time. Executors also need to balance the demands of the process with their personal circumstances, such as dealing with grief, which can be slow progress.

While there are no strict timelines for applying for probate, executors must act in the best interests of the beneficiaries. Unnecessary delays could lead to concerns from beneficiaries.

Inheritance Tax deadline: 6 months

Although probate has no set deadline, there is a time limit for paying Inheritance Tax, which must be paid within six months of the person’s death, or interest will begin accruing. Importantly, the probate registry will not issue the Grant of Probate until any owed Inheritance Tax is paid in full. 

Receiving the Grant of Probate: 8-16 weeks

According to current government guidance, you should receive the Grant of Probate within 16 weeks of submitting the application, though it can take longer if additional information is required.

Delays have been common in recent years due to backlogs, particularly during the pandemic, with some cases taking longer than 21 weeks. However, improvements are being rolled out to reduce these delays.

Completing the probate process

Once probate is granted, the executor has the remaining time (within the 6 to 12 month window) to realise (sell or transfer) the assets, prepare and finalise the estate accounts, and distribute the estate to the beneficiaries.

Keep in mind that claims against the estate can still be made within six months of the Grant of Probate being issued, potentially extending the timeline further if any disputes arise.

What happens if there is no will?

When someone passes away without leaving a valid will, their estate is considered intestate, and the distribution of their assets is governed by the rules of intestacy. These rules dictate who is entitled to inherit and who is responsible for administering the estate.

If a valid will exists, it usually names one or more executors who are responsible for applying for probate and managing the estate according to the deceased’s wishes. However, when there is no will, no executors have been appointed and a different legal process must be followed.

The absence of a will significantly complicates the probate process. While probate may not always be necessary when a will is present, it is almost always required for intestate estates, particularly if the estate exceeds the Inheritance Tax threshold or involves complicated financial or familial circumstances.

Can probate still be granted without a will?

Yes, probate can still be granted even without a will, but the process differs. In these cases, you must apply for a Grant of Letters of Administration. This legal document is necessary to appoint an administrator, who gains the authority to manage and distribute the estate.

The administrator’s responsibilities are similar to those of an executor but are governed strictly by the rules of intestacy, including:

Family members or eligible beneficiaries can apply to become the administrator. But, if no eligible family members come forward, the Probate Registry may appoint an administrator, such as a legal professional, to ensure the estate is managed appropriately.

What is the probate threshold?

The probate threshold is the value limit below which a deceased person’s estate can be administered without obtaining a Grant of Probate. In England and Wales, this threshold is not fixed by law but instead determined by each financial institution.

It usually ranges from £5,000 and £50,000, with the probate threshold referring specifically to the amount of money in a bank account that a financial institution will release without requiring a Grant of Probate. For example, some banks may release funds below £5,000 without probate, while others may set their limit as low as £5,000.

How is the probate threshold determined?

The probate threshold is determined by the policies of individual financial institutions, not by a legal standard. Each bank or building society sets its own rules regarding the value of assets they will release without requiring probate, including:

• The institution's internal risk management policies.

• The nature of the accounts and assets held with them.

Because thresholds vary, the executor or administrators must contact each financial institution involved in the estate to confirm their specific requirements.

How is a probate property valued?

Valuing a property for probate involves determining its open market value as of the date of the deceased’s death. This value is critical for calculating the total estate value and determining whether Inheritance Tax is applicable, including:

• Professional valuation: Hiring a qualified surveyor or estate agent for a formal probate property valuation.

• Estate agent appraisals: Obtaining written valuations from local estate agents familiar with the area and market conditions. 

It’s important to provide an accurate valuation to avoid complications, particularly if the estate’s value is close to the Inheritance Tax threshold.

What happens if an estate is below the probate threshold?

If an estate is valued below the probate threshold set by the financial institutions:

• No grant of probate required: Financial institutions may release funds to beneficiaries or the executor without requiring probate. Instead, they may ask for documentation like a death certificate and proof of identity.

• Simplified administration: The executor or next of kin can distribute the estate directly without undergoing formal probate processes.

• Statutory declaration: In some cases, institutions may ask for a signed statutory declaration to confirm the executor’s authority before releasing funds.

For estates with no property and less than £5,000 in assets, probate is usually unnecessary. Executors should confirm requirements with each financial institution, as processes can vary.

Can you sell the house during probate?

In most cases, you cannot sell an inherited property without obtaining probate. While the property can be listed for sale and offers can be made, the formal exchange of contracts cannot occur until the Grant of Probate (or Grant of Letters of Administration) has been issued.

This legal document gives the executor or administrator the authority to transfer ownership of the property. However, there are certain exceptions where probate may not be required to sell a house, which include:

While most inherited properties require probate before they can be sold, exceptions exist, particularly when the property is jointly owned or held in a trust. In those cases, the surviving co-owner or trustee already has the legal authority to manage the property, making probate unnecessary.

Why choose The Property Buying Company?

Once probate is granted, many beneficiaries or executors aim to sell the probate property quickly, often to cover debts, distribute funds among beneficiaries, or simply to speed the process and reduce ongoing costs, such as maintenant, utilities and insurance. When looking to sell quickly, there are two main avenues to consider: property auctions and cash house buyers.

While property auctions can be a good option, especially for those looking to achieve market value in a relatively short time (28 to 56 days), they come with risks. The auction process can be unpredictable, and there is no guarantee the property will sell at a desirable price. Additionally, auction fees and the timeline between the auction and completion can extend the process beyond what’s ideal for someone in need of a fast sale.

In contrast, selling to a cash house buyer is a far better option for those looking for speed and certainty. Cash buyers are usually property investment companies who can make an immediate offer without the need for applying for a mortgage. The key advantage here is speed – sales can often be completed in as little as 7 days. This eliminates the uncertainty of property chains and the risks of deals falling through, which is a common issue in auctions and traditional sales.

Moreover, cash buyers often take properties in their current condition, meaning there is no need to spend time or money on repairs or renovations. There are no estate agent fees, and many cash buying companies cover all legal costs, making it a hassle-free solution. 

And, speaking about cash house buyers, selling to The Property Buying Company is the best option for those looking to offload probate property quickly and hassle-free. We specialise in fast property sales, able to complete in as little as 7 days, which is ideal for executors or beneficiaries who need to settle the estate without the stress of long, drawn out open market house sales.

Unlike property auctions, where there’s no guarantee of hitting the desired house price, or even selling in auction, The Property Buying Company offers a guaranteed sale with no hidden fees or complications.

We also commit to making the process as smooth as possible for you. We can do this by handling all the legwork, talking with solicitors, covering the costs, buying properties in any condition, meaning there’s no need for repairs or upgrades before the sale.

By choosing us, you can avoid the financial and emotional burden of preparing a property for sale, all while securing a fair, fast cash offer (for free).