Legal requirements for settling and distributing an estate

There are set legal processes and requirements for dealing with the property and possessions of someone who has died.  However, these may vary depending on the size and complexity of the estate. For most, it will be necessary to apply for probate and details of how to do this are set out below.

WHAT IS PROBATE?

Probate is the legal and financial processes involved in dealing with the property, money and possessions (called assets) of a person who has died.

APPLYING FOR PROBATE

When someone dies, their assets are usually automatically frozen, so the executors (if there is a will) or administrators (if there is no will) will need to apply to the Probate Registry for permission to sort out (administer) the estate.

It is not always necessary to apply for probate; for example if the property, land, shares or money was jointly owned, or if the value of the assets fall below a specified level. The Estates Administration Act states that probate should be obtained in all estates that exceed £5,000, but it is generally left to the various institutions that hold the assets to set the level beyond which they require a Grant.

For further details, see the Government information on applying for probate.

The probate process is different in Northern Ireland (see the Government information) and Scotland (see the Government information).

WHAT THE PROBATE REGISTRY WILL DO

Once the original documents have been sent to the probate office, a grant of probate will usually be issued within four weeks. However, it may take longer, so do not make firm plans until you have received the grant.

Depending on the circumstances, the Probate Registry will issue one of the following:

    • if the deceased left a will and appointed executors, a grant of probate (or Letters of Administration) will give the executors the legal right to administer the estate;
    • if the deceased left a will but didn’t appoint executors, a grant of letters of administration with a will is issued;
    • if they died intestate (with no will), then a grant of letters of administration will be issued.

THE PROBATE PROCESS AND ADMINISTERING THE ESTATE

The key steps in the process are:

    • check whether there is a will
    • value the estate and report it to HMRC
    • if required, pay any inheritance tax
    • collect the assets of the estate
    • pay off debts
    • keep a record of how possessions, money and property will be split
    • pass the estate on to the people named in the will

To apply for probate, go to the Government website.

There are probate specialists and lawyers who can help you navigate the probate process, but they can be expensive. Money Helper has information on how much they charge and when to consider using a specialist.

To find companies or organisations who can help you with probate, please visit Probate & Legal Advice in the Providers section of whiteballoon.

 

Do I need to appoint a solicitor?

There is no legal requirement to contact a solicitor when someone dies. Many people undertake the probate process and administering the estate themselves, particularly if its value is below the Inheritance Tax (IHT) threshold (for more information, see the Government website on inheritance tax).

However, it can be complex, time-consuming and, for most people, unfamiliar. Having an experienced solicitor to provide advice and guidance can be helpful and reassuring, particularly when you are grieving. Typically, legal fees are 2.5 per cent of the value of the estate, but are usually open to negotiation.

Where to find help

For companies or organisations that can help you with legal advice, please visit Probate & Legal Advice in the Providers section of whiteballoon.