Do I need probate if there is a will?

Death certificate in hand, will located, yet the maze of legal requirements still looms. “Surely with a valid will, probate isn’t necessary?” This critical misconception leaves thousands of executors unprepared yearly. Why does a will go to probate at all? Whether you’re facing unexpected property transfer obstacles, frustrated by financial institutions requiring “probate” despite clear will instructions, or simply planning ahead, this guide cuts through confusing legal jargon to provide clarity when you need it most. For tailored advice addressing your unique circumstances, consult a solicitor specialised in probate and estate administration.

Discover why executors cannot afford to skip probate, and when you might be among the few who can legally bypass it.

Do you need a solicitor?

We will connect you with the right solicitor, near you.

Find a solicitor near me Request a call

Do I need probate if there is a will? The core answer

The short answer is yes. In most cases you will need probate despite having a valid will. The will itself doesn’t eliminate probate; it simply guides the process. Under UK law:

• Assets exceeding financial institution thresholds (typically £5,000-£50,000) require probate regardless of will provisions.
• Solely owned property always necessitates probate before any transfer can occur.
• Special will types like privileged wills or mutual wills follow the same requirement.

Begin your assessment by cataloguing all assets, their ownership structure, and approximate values. This determines whether you fall into the minority of estates that can bypass probate entirely.

When is probate required: Asset evaluation

Probate becomes mandatory when the deceased owned assets above specific thresholds, typically £5,000-£50,000 at most financial institutions. Assets that always require probate include:

1. Solely-owned real estate, shares, premium bonds, and most investments exceeding the institution’s threshold.
2. Joint ownership dramatically changes requirements: assets held as joint tenants pass automatically to surviving owners, while those held as tenants in common require probate for the deceased’s share.
3. Digital assets, overseas property, and business interests introduce additional complexity regardless of value.

Why is probate required at all? It legally validates the will’s authenticity, protects financial institutions from liability, and creates a transparent public record preventing fraud, essential safeguards that protect both executors and beneficiaries.

Bypass scenarios: Legitimate probate alternatives

Certain estates can legally avoid probate entirely:

• The small estate procedure allows assets below £5,000 total to transfer via simplified processes using just the death certificate, though the threshold varies regionally. Northern Ireland sets it at £10,000.
• Survivorship mechanisms include jointly held bank accounts, insurance policies with named beneficiaries, and property owned as joint tenants which all pass outside probate automatically.
• Pre-death planning options include lifetime gifts (beware the 7-year rule), establishing trust structures like Pilot trusts or Family Protection trusts, and using death benefit nominations for pensions.

Do I need probate if there is a will with these arrangements? No, but only when these bypass mechanisms cover all significant assets.

Real estate considerations: Probate property

Property typically represents the largest asset requiring probate attention:

• Do you need probate to sell a house if there is a will that explicitly names the beneficiary? Absolutely. The Land Registry will reject any transfer or sale without a grant of probate for solely-owned property. No exceptions exist, regardless of will clarity or beneficiary agreement.
• Before probate, executors cannot legally complete property sales, though they can list properties and accept offers “subject to probate.”
• During the waiting period, executors must maintain buildings insurance, arrange vacant property coverage if unoccupied, conduct essential maintenance, and potentially seek empty property licenses from local authorities.
• Interim occupation by beneficiaries remains possible through formal license agreements.

Will verification process

Do you need the original will for probate? Yes, the Probate Registry requires the physical original will with wet signatures, not photocopies or digital versions:

• Authentication demands the testator’s original signature plus two witness signatures, all in black ink.
• Additional requirements include no staple alterations, margin initials for any amendments, and a completed PA1P form declaring the will as original.
• When the original is missing, executors must file a lost will statement accompanied by a photocopy if available, plus affidavits from witnesses confirming its contents.
• The Probate Registry may accept reconstruction evidence including solicitor drafting notes, earlier will versions, and testimony from those familiar with the testator’s intentions.

Executor responsibilities: Taking action

Do I need to apply for probate if there is a will naming me as executor? Yes, unless the estate qualifies for small estate exemption, you have a legal duty to initiate the probate process:

• Executors bear personal liability for proper estate administration, including asset protection, debt settlement, tax submissions, and correct beneficiary distributions.
• Reluctant executors can either delegate administration to a professional while retaining executor status, or formally renounce their position; but only if they haven’t “intermeddled” with estate assets.
• Timing is critical: begin gathering documentation immediately, file IHT forms within 12 months, but delay asset distribution until creditor claims expire (typically 6 months after probate grant).

Probate pathfinding: The application blueprint

Securing probate begins with methodical documentation gathering:

1. Collect the death certificate, original will, property deeds, financial statements, and identity verification for all executors.
2. Asset valuation requires full market valuation for property (not tax bands), date-of-death statements for financial accounts, and professional appraisals for items exceeding £500.
3. Tax compliance hinges on accurate completion of form IHT205 (no inheritance tax due) or IHT400 (tax payable), both requiring submission before probate application.
4. The application process itself involves completing form PA1P, swearing an executor’s oath, paying application fee, and submitting documentation through the online probate portal or by post to your local Probate Registry.

Financial planning: Budgeting for probate

Probate costs begin with the flat £273 application fee (£155 for solicitor applications), plus £1.50 per official copy required.

• Estate complexity introduces variable professional fees, typically either fixed packages (£1,000-£5,000 for straightforward estates) or percentage-based fees (1-5% of estate value).
• Disbursement costs include property valuations (£150-£800), asset searches (£100-£200), statutory advertisements (£200), and bankruptcy searches (£2 per beneficiary).
• Payment timing creates a catch-22 situation: fees must be paid before accessing frozen assets, requiring executors to either advance personal funds (reimbursable later) or apply to banks for direct payment from the deceased’s accounts under their “bereavement exception” policies.

FAQS

• Can a beneficiary also act as an executor during probate? While legally permitted and common, beneficiary-executors must maintain impartiality, keep detailed records, and clearly separate their dual roles to prevent conflicts with other beneficiaries.
• What happens if an executor refuses to apply for probate? Other interested parties can request a court citation compelling the executor to either act or formally renounce. If unresponsive, the court can issue a power reserved grant allowing others to proceed while documenting the executor’s non-participation.
• How does probate differ for intestate estates (those without a will)? Without a will, the process becomes Letters of Administration rather than Grant of Probate, using different forms (PA1A instead of PA1P) and following statutory intestacy rules for distribution rather than personal wishes.

Probate is usually necessary despite having a will, particularly for solely-owned property and assets exceeding financial institutions’ thresholds. Understanding when probate applies saves executors time, money, and stress during an already difficult period. Specialised legal guidance remains invaluable for all but the simplest estates.

Don’t navigate probate alone!

Secure peace of mind with Qredible’s’ network of specialized probate solicitors. Services provide executor protection, ensure legal compliance, and expedite the probate process.

KEY TAKEAWAYS

• A valid will does not eliminate the need for probate in most cases, particularly for solely-owned property and assets exceeding financial institution thresholds. Executors must typically apply regardless of clear will instructions.
• Asset ownership structure significantly impacts probate requirements, with jointly-held assets typically passing automatically to surviving owners while tenants-in-common arrangements require probate for the deceased’s share.
• Executors face personal liability throughout the probate process, making professional legal guidance essential for complex estates involving inheritance tax, business assets, foreign property, or complicated family structures.