Do all will executors have to apply for probate?
Applying for probate is an important step for someone administering your estate – but is it always necessary?
What is probate and why is it needed?
Probate is a legal document that grants someone the legal power to administer your estate when you pass away.
When you write your will, you’ll first name an executor. This person will carry out your final wishes and instructions, which includes distributing your estate to beneficiaries.
However, before they can do this, they’ll first likely need to apply for a grant of probate.
Once an executor has been granted probate, they can do things like:
Access bank and building society accounts
Pay off any outstanding debts and taxes
Collect and liquidate assets
Sell or transfer property
Acting as an executor is a time-consuming and sometimes complicated role, so choose someone you trust to carry out your wishes.
When doesn’t an executor apply for probate?
Your executor won’t always have to apply for probate – but it’s best to chat to a solicitor if you’re unsure, as it’s important to get this right.
Probate isn’t usually needed if:
Your estate is worth less than £10,000
You don’t own property or
You jointly own property with your partner
The only money you have is in a joint bank account or
You only have small savings or premium bonds
You have less than £5,000 in cash
You only own lower value possessions like jewellery, furniture, or a car
Your estate is insolvent
An executor will need to contact each ‘asset holder’ – e.g., the bank that holds your mortgage – to gain the right to manage the estate.
All organisations have their own threshold for determining when probate is needed. So, for example, an executor may still need to apply for probate to access an account even if the amount in savings is below the usual limit.
Can you still get probate without a will?
If someone passes away without leaving a will, there will be no executor and no grant of probate.
Instead, someone who would inherit under intestacy laws must apply to the Court of Protection to be appointed an administrator. The role is very similar to that of executor, though more restricted. If more than one person applies to be an administrator, the courts will usually appoint the main beneficiary.
Once an administrator is appointed, they’ll need to apply for a letter of representation. This is also commonly referred to as ‘probate’, since a grant of representation gives someone the legal right to manage your estate.
And like probate, it’s not always a necessary step, depending on the estate’s value (and an organisation’s probate thresholds).
Family members may also apply for a grant of representation if an executor is unwilling to get probate.
How long does it take to get probate?
Probate usually takes around four weeks – although it may be longer, depending on the complexity of the estate. An estate with multiple properties and bank accounts will take longer to process than a small estate with a single home. And due to the pandemic, the Government expects applications to take up to eight weeks.
It can take longer for an administrator to get a letter of representation. Because of this, it’s best to write a will – the process will be a lot smoother and quicker for your loved ones at a time when dealing with legal documents will be the last thing on their mind.
What happens once probate is complete?
After the executor has completed probate and cleared any debts, they can begin to divide up your estate in accordance with your will.
If there’s no will, the administrator will distribute possessions and property following intestacy laws. They may not deviate from these rules, unless all beneficiaries sign a deed of variation.
For this reason, we encourage people to write a will – to outline your wishes and make life a bit easier for your loved ones. Chat to one of our solicitors today and give them peace of mind over the future.