A guide to wills and probate in the UK

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Writing a will, or handling the will of a loved one, can be a complex task with many uncertainties. You might be wondering, “What is probate of a will?” or “When is probate needed?”, or perhaps you’re trying to locate probate records. There are a lot of questions that come up with wills and probate, so this page attempts to break it all down in a simple way.

When someone passes away, managing their estate typically involves both a will and probate. A will is a detailed legal document outlining the deceased’s wishes, while probate is the process that lets someone act on those wishes and distribute the contents of the will in a way that’s legally conform. An ‘estate’ is essentially everything the person owns, such as property, money, and possessions.

Once the person has passed away, the executor named in the will may need to apply for a Grant of Probate. This gives them the official right to manage the estate according to the will and ensures any assets within it are protected, whether they are being sold or passed on to beneficiaries.

Once probate is granted, the executor can then start selling property, settling debts, and distributing the inheritance as per the will. Without this legal authority, the executor cannot take any action. If you’re dealing with wills and probate after a loved one has died, it might be helpful to seek legal advice.

Not all estates need probate. If the deceased had only a small amount of savings or assets, probate may not be necessary. Similarly, if assets like property, shares, or savings were held jointly with others, these will pass automatically to the surviving owner(s).

Probate is more likely to be needed if the estate includes larger individual assets. In England and Wales, this includes estates valued over around £5,000, but the specific threshold can vary by financial institution. Some institutions may decide on a case-by-case basis.

How does probate work in Scotland and Northern Ireland? In Scotland, probate is called ‘Confirmation’, and it’s typically needed if the deceased owned at least one asset (money or property) in Scotland. Confirmation considers estates small when they’re worth £36,000 or less and large when they’re over that amount. In Northern Ireland, probate is generally required if the deceased left around £20,000 in a single savings account, stocks or shares, certain insurance policies, or property.

If you’re unsure whether probate is necessary, your first step should be to contact the financial institutions used by the deceased, such as their banks, building societies, credit unions, or mortgage providers. They’ll be able to tell you whether probate is needed to transfer or sell any assets.

Once you have confirmation that probate is needed, you can apply to get probate. You’ll firstly need to check who is eligible to apply, and this depends on whether there’s a will or not. Where a will is available, the executor named within it can apply for probate. If there’s no will, the closest living relative is usually responsible. This is determined by intestacy laws, and is usually the spouse or civil partner, followed by children and other close relatives.

The next step is to estimate the value of the estate of the person who died. This is important for tax purposes, as inheritance tax may need to be paid before you can apply. Even if you determine there is no tax to pay, you’ll still need the value of the estate during the application process.

Once you’ve reported the full estate to HMRC, you’ll need to:

• start paying any inheritance tax owed
• wait for a letter from HMRC with a code, which is required before applying for probate.

Now you can apply for probate, either online or by post. If you prefer, you can hire a solicitor who specialises in wills and probate to take care of the process, though this can be a more expensive route.

According to the government page, probate of a will is typically granted within 16 weeks of submitting your application. However, the whole probate process in the UK, from the date of the person’s death to the estate being distributed, can take up to 12 months. It might be slightly shorter if the estate is on the smaller side.

If you apply by post, the process may take longer than 16 weeks, so the government recommends applying online. There’s support available for those who don’t have internet access or prefer not to use it. For more details on the probate process, visit the government’s wills and probate application page.

Finding wills and probate records in the UK can vary depending on which part of the country you’re looking at and the time period involved. You can access documents dating back to 1857, while newer probate records are available online about 14 days after probate is granted.

How to find wills and probate in England and Wales:

In England and Wales, you can search for probate records online through the official GOV.UK website or by post. You’ll need the full name of the person who has died and the year of their death. The service can be used to check if probate has been granted and order a copy of the probate record, including the will (if there is one). There may be a small fee for ordering a copy.

How to find wills and probate in Scotland:

In Scotland, you may find registered wills through:

• The Scottish Courts and Tribunals Service, if the will was registered with a court.
• Registers of Scotland, if the will was registered in the Books of Council and Session.
• The National Records of Scotland, for historical wills.

How to find wills and probate in Northern Ireland:

For Northern Ireland, you can contact the Public Record Office of Northern Ireland (PRONI) to search for probate records or wills.

A will is a private document while the person who made it (the testator) is still alive. Generally, only the testator can view it, though there are a few exceptions. Once the testator passes away, the will remains private until probate is granted. During this time, only the named executors can access it.

As soon as probate is granted, however, the will becomes a public record. At that point, any member of the public can request a copy by applying to the Probate Registry. Of course, if the estate is small enough that probate isn’t required, the will might not be publicly available. The personal representatives (those responsible for managing the estate) can instead choose to send a copy of the will directly to the main beneficiaries.

Executors aren’t legally bound to share the will with anyone who asks, but beneficiaries do have the right to request a copy. If an executor refuses, the beneficiary can ask a solicitor to make the request on their behalf. Alternatively, the beneficiary could apply to the Court to compel the executors to apply for probate, making the will public. This is not very common, however, and usually a last resort.

When writing a will, there are a few key details your solicitor will need to ensure everything is covered. First and foremost, you’ll need to list all the assets you want to include, such as your home, any vehicles, savings, investments, and other valuables. You’ll also need to clearly specify who should inherit each asset.

You can outline personal wishes too, such as your preferred funeral arrangements. If you have children under 18 (including stepchildren or adopted children), you’ll need to specify who will take care of them in case you pass away.

In terms of the administrative aspects of wills and probate, you’ll need to mention who you’ve chosen as your executor, as they will be responsible for handling your estate. You should also say what should happen if someone you’ve named to benefit from the will passes away before you.

For a will to be legally valid, it must meet a few key requirements:

• The person making the will must be at least 18 years old.
• The will must be written voluntarily, with no pressure or undue influence.
• The person must be of sound mind, meaning they fully understand what the document is, the property it covers, and who will inherit from it.
• It must be written down, signed by the person making it, and witnessed by two people. The witnesses must also sign in the presence of the person making the will.

There are a few restrictions on who can act as a witness. Witnesses, and their spouses or civil partners, cannot benefit from the will. If a witness is named as a beneficiary, the will remains valid, but they won’t inherit anything.

Although a will doesn’t need to be dated to be legally binding, it’s a good idea to include a date to avoid any confusion about when it was made. Once the will is signed and properly witnessed, it is complete.

If a will fails to meet these legal requirements, it won’t be valid and the wills and probate process will be disregarded. In this case, the estate will be distributed according to intestacy laws.

It is possible to write a will without a solicitor, but it’s very easy to make mistakes, especially if you have multiple beneficiaries or complicated finances. If errors are made, your executor will have to sort them out, which could involve legal costs. These costs can eat into your estate, leaving less for your loved ones.

If you co-own a property with someone who isn’t your spouse or civil partner, or if you need to make provisions for a dependent who can’t care for themselves, a solicitor can help ensure everything is properly handled.

Even if you just have a solicitor check a will you’ve drafted, that can be better than doing the whole thing yourself. You want to make sure everything is legally sound, and your wishes are followed correctly.

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