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10 Wills and Probate

Download Wills and Probate (PDF File 539kb)

1. Introduction

2. Why should I make a will?

3. What makes a will valid?

4. Who can be a witness?

5. What does an executor or administrator do?

6. What is probate?

Probate (or more specifically 'probate of the will') is an official form that gives the executors of the will the right to deal with the assets and property of the dead person. When you show the probate form to a bank, for example, they know they are dealing with the person who has the right to handle the estate, and they will allow you to withdraw money from the dead person's account. However,it is normally possible to get access to the dead person’s money before you get probate if you need to pay inheritance tax.

When you apply for probate, you are promising the Probate Court that you will deal with ('administer') the estate as set out in the will and according to law. If you don't do this, you will be in trouble with the court (and with the people who should benefit from the will). Probate makes sure that the executors carry out their task properly.

When there is no will (or no executors are named in the will, or the executors have died), the official form is called 'letters of administration'.

Do I always need to get probate?
In some cases, you don't need to apply for probate. This is when:

  • the person who has died left very little (say, belongings and money amounting to less than £5,000);
  • everything they owned was held in joint names with someone to whom their share passes automatically (normally a husband or wife); or
  • any bank or building society accounts that the person had contain less than £5,000 each (though banks and building societies have the right to insist on probate in this case).

However, you will need to apply for probate if the person who died had:

  • a bank, building society or National Savings account with more than £5,000 in it;
  • stocks or shares; or
  • property or land (unless it is owned as a joint tenancy and so passes automatically to the other owner).

You may have to apply for probate if the person had any life insurance or term insurance policies that are paid to the estate. Some kinds of policy say that they will be paid straight to the beneficiaries of the policy (rather than to the estate), and you do not need probate for these.

You will have to apply for probate if the person who has died gave away large gifts or sums of money (which, with the person's other assets, total more than a certain amount, called the 'nil rate band') in the seven years before they died. If so, inheritance tax must be paid on the amounts over the nil rate band. The amount of nil rate band is reviewed each year - see 'Will I have to pay inheritance tax?'.

Even if the gifts were not worth more than the nil rate band, their value must be added to the assets of the dead person, because the amount of inheritance tax is based on the value of the estate plus the value of any gifts made in the seven years before they died (excluding certain annual allowances).

There is an important exception to the seven-year limit on gifts: if the person who died gave away their home but continued to live in it rent-free, (or paid an unreasonably low rent) its value will count towards the assets on which inheritance tax must be paid, regardless of when they gave it away.

In most cases where there is no will you must apply for 'letters of administration', which serve the same purpose as probate. You apply for a grant of letters of administration in the same way you would apply for probate. However, as with probate, you may not have to apply for letters of administration if the person's estate was not worth very much.

How do I apply for probate?
You may apply in person for probate or letters of administration, or you may instruct a solicitor, who can apply on your behalf. You apply to:

  • the Principal Registry (in London); or
  • a district probate registry (in other cities and many large towns).

See 'Further help' for the number to call to find your nearest probate registry. The registry can send you information packs. These include probate application forms and information on how to fill them in. You can also talk to registry staff if you are having difficulty filling in a probate application.

7. Will I have to pay inheritance tax?

8. Who takes charge if there is no will?

9. Who gets the estate if there is no will?

10. What can I do if I think there is something wrong with the will?

11. What can I do if I think the will is unfair?

12. What if there isn´t enough money to pay for the funeral?

13. What if there isn´t enough money to pay the person´s debts?

14. Terms used in wills and probate matters

15. Further help

16. About this leaflet

The leaflets in this series give you an outline of your legal rights. They are not a complete guide to the law, nor do they explain how the law will apply to you or to any specific situation. The leaflets are regularly updated, but the law may have changed since this was printed, so information in it may be incorrect or out of date.

If you have a problem, you will need to get more information or personal advice to work out the best way to solve it. See 'Further help' for sources of information and advice.

This leaflet is published by the Gurkha Free Legal Advice (LSC).

Leaflet version: January 2009

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