This information applies to England and Wales
Everything owned by a person who has died is known as their estate. The estate may be made up of:
If the person who died owes money to other people, for example, on a credit card, for fuel, for rent or a mortgage, this comes out of the estate.
The estate of the person who has died is usually passed to surviving relatives and friends, either according to instructions in the will, or if the person dies without leaving a will, according to certain legal rules called the rules of intestacy.
For information about wills, see Wills.
For information about the rules of intestacy, see Who can inherit if there is no will – the rules of intestacy.
The person dealing with the estate of the person who has died is called an executor or an administrator. An executor is someone who is named in the will as responsible for dealing with the estate. An executor may have to apply for a special legal authority before they can deal with the estate. This is called probate.
An administrator is someone who is responsible for dealing with an estate under certain circumstances, for example, if there is no will or the named executors aren't willing to act. An administrator has to apply for letters of administration before they can deal with an estate.
Although there are some exceptions, it is usually against the law for you to start sharing out the estate or to get money from the estate, until you have probate or letters of administration.
The executor or administrator (also called the personal representative) takes responsibility for dealing with all of the estate. This involves:
If you are named in someone's will as an executor, you may have to apply for probate. This is a legal document which gives you the authority to share out the estate of the person who has died according to the instructions in the will. You do not always need probate to be able to deal with the estate.
If you have been named in a will as an executor, you don't have to act if you don't want to.
In some circumstances, someone who wants to deal with the estate of someone who has died will have to apply for letters of administration, rather than probate. This person is called an administrator. You have to apply for letters of administration if:
There are strict rules about who can be an administrator. If there is a valid will, you can apply for letters of administration if:
If there is no valid will, and you are the next-of-kin, you can apply to be an administrator in the following order of priority:
An unmarried partner, or same-sex partner who has not registered a civil partnership and who has not been named in a will as an executor will not usually be able to act as an administrator.
You do not always need letters of administration to be able to deal with the estate of someone who has died.
You usually need probate or letters of administration to deal with an estate if it includes property such as a flat or a house. Otherwise, you may not need probate or letters of administration if:
Couples may jointly own their home. There are two different ways of jointly owning a home. These are beneficial joint tenancies and tenancies in common.
If the partners were beneficial joint tenants at the time of the death, the surviving partner will automatically inherit the other partner's share of the property. There is no need for probate or letters of administration unless there are other assets that are not jointly owned. The property might have a mortgage.
However, if the partners are tenants in common, the surviving partner does not automatically inherit the other person's share. Probate or letters of administration will be needed so the personal representative can pass it whoever will inherit the share of the property, according to the will or the rules of intestacy. The property might have a mortgage.
For more information about beneficial joint tenancies and tenancies in common, see Buying with someone else in Buying a home. For more information about the rules of intestacy, see Who can inherit if there is no will – the rules of intestacy.
If the property is to be inherited by someone and there is still an outstanding mortgage on it, the mortgage company will either require the mortgage to be paid immediately, or ask the person who inherits the property to take over the mortgage.
If there is a mortgage on the property, there might be a life insurance policy, an endowment policy, or mortgage protection policy which will pay the outstanding mortgage if the person with the mortgage dies. In this case, you should write to the company, asking for a final statement.
If the property is to be sold, the mortgage will be paid out of the sale of the property.
Couples may also have joint bank or building society accounts. If one dies, all the money will go to the surviving partner without the need for probate or letters of administration. The bank may need the see the death certificate in order to transfer the money to the other joint owner.
Probate or letters of administration may still be needed if there are other assets that are not jointly owned.
The estate may be made up of a relatively small amount of money held:
If, after the funeral expenses have been paid, the amount of money held the organisation is under £5,000, they might be prepared to release it to you without you having to apply for probate or letters of administration. This applies even if the total value of the estate is more than £5,000.
Some banks and building societies will release larger amounts without the need for probate or letters of administration. Also some banks and building societies money will release money needed to pay for a funeral, probate fees and inheritance tax but nothing else until you have been granted probate or letters of administration.
This depends entirely on the policy of the organisation in question. They do not have to release anything, however small the amount of money. If the organisation refuses to release money without probate or letters of administration, you must apply for probate or letters of administration even if it is not otherwise needed.
Many executors and administrators act without a solicitor. However, if the estate is complicated, it is best to get legal advice. You should always get legal advice if, for example:
The legal fees can be paid for from the estate or you may qualify for legal aid.
If there are any problems with the way that executors or administrators deal with the estate, for example, if there is unreasonable delay or if the executors or administrators misuse their legal powers, you will need legal advice.
For more information about getting legal advice, see Using a solicitor.
For more information about legal aid, see Help with legal costs.
The time it takes to get probate or letters of administration varies according to the circumstances. It may only take three to five weeks if there are no complications, inheritance tax is not payable, the estate is straightforward and all forms are filled in properly. However, in more complicated cases, it may take much longer.
To apply for probate or letters of administration, you need to fill in a number of forms. You always need to fill in form PA1. This form asks for details about the person who has died, their surviving relatives, the personal representative and some details about the will, if there is one.
You will also need to fill in other forms depending on what is in the estate and how much it is worth.
You can get an application pack from any local probate registry or by telephoning the HMRC Probate and Inheritance Tax Helpline on 0845 302 0900. The Welsh language helpline is: 0845 302 1489. You can get contact details of the nearest probate registry from the helpline number or on HM Courts Service website at www.hmcourts-service.gov.uk.
The forms and leaflets are also available on the internet. PA1 can be found on HM Courts Service website at www.hmcourts-service.gov.uk. Other forms are available from HMRC website at www.hmrc.gov.uk.
You will have to go for an interview at a probate registry when you have sent in the forms, so return the forms to the probate registry where you would like to go for the interview. With the forms, you also have to send:
Make sure you keep copies of the forms you have filled in.
The fee for applying for probate or letters of administration depends on the value of the estate. There is no fee where the value of the estate is less than £5,000. The fee for an estate valued at £5,000 or more is £90.
You can apply to pay a reduced fee, or no fee, if you are on a low income or face financial hardship. Apply on form EX160 which you can get from the website of Her Majesty's Courts Service. Go to www.hmcourts-service.gov.uk.
When they have looked at your forms, the probate registry will contact you, giving a date and time when you have to go for an interview at the probate registry.
You need to take all relevant documents and letters with you, for example, bank books, share certificates and details of any debts of the person who has died. You also need to take identification with you, for example, your passport or driving licence.
The probate registry will have transferred all the details onto the official legal papers by the time of the interview. You should read these very carefully and check all the details. You are legally responsible for making sure the documents are correct and you have to confirm on oath that the details are accurate.
Whether or not probate or letters of administration is needed, you have to inform HM Revenue and Customs (HMRC) of the death, in case inheritance tax is payable.
Inheritance tax may have to be paid if the estate is valued at more than £325,000. There are some exceptions to this rule, for example, if the husband, wife or civil partner inherits the estate.
If inheritance tax has to be paid, some of the tax must be paid before probate or letters of administration is granted. Once probate or letters of administration has been has been granted, the final tax bill will be sorted out.
For more about inheritance tax, see Inheritance tax.
After the interview, you will get a letter saying how much inheritance tax is still left to pay.
Once this has been paid, probate or letters of administration will be sent to you in the post. It includes details of the gross and net estate, that is, the value of the estate before and after debts have been deducted. A photocopy of the will, stamped to prove it is an official copy, is also sent. Both the probate/letters of administration and the will are public documents and can be examined by anyone who wants to see them.
Once you have got probate or letters of administration, you can begin to deal with the estate and share out the property.
Even if you have been named as an executor in someone's will, you may not wish to, or be able to, act. You can appoint someone else to apply for probate on your behalf. To do this, fill in their details on form PA1. The other person will then be sent a form to sign.
You may not want to appoint someone else to act for you. You can still refuse to act, as long as the person who made the will has died and you have not already started to deal with the estate. This is called renouncing.
To renounce, you fill in a form, called a form of renunciation. You can buy this form from a specialist legal stationers such as Oyez. You can order forms from their website at: www.oyezformslink.co.uk. You then file the form at a probate registry, together with the will.
This means that someone else could then apply for letters of administration.
The Department for Work and Pensions produces a useful leaflet called What to do after a death. Go to their website at: www.dwp.gov.uk.
HM Courts Service produces a useful guide for people who are applying for probate or letters of administration. It is called How to obtain probate - A guide for people acting without a solicitor. You can download the leaflet from their website at: www.hmcourts-service.gov.uk.
Cruse Bereavement Care supports people who are bereaved and produces useful information and advice. Go to their website at: www.crusebereavementcare.org.uk.
Their helpline is: 0844 477 9400.
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