Do I need probate if there is a will?
A will settles who is in charge and who inherits. It has no bearing on whether a grant of probate is needed, which depends entirely on the assets.
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The short answer
- Having a will does not mean you need probate, and it does not mean you can skip it. The two are independent.
- The will names the executor. If a grant is needed, that person applies for a grant of probate and the will is "proved" by the court.
- Whether a grant is needed depends on the assets: sole-name property, or a sole-name account above the holder's limit, means yes; everything joint or small means probably not.
- If no grant is needed, the will still governs who inherits. The executor distributes according to it without any court involvement.
- Keep the original will safe and unmarked. If a grant is needed the original must be sent to the probate registry.
People ask this in two opposite ways. Some hope that having made a will means their family can avoid probate; others assume that a will is a legal document that has to be "gone through" in court. Neither is right. In England and Wales a will is proved (that is what "probate" means) only when a grant is needed to deal with the assets, and it is needed for exactly the same reasons whether or not a will exists.
What a will actually decides
A valid will does three things. It appoints one or more executors, the people with authority to deal with the estate. It says who inherits what. And it may set up trusts, appoint guardians for children or record funeral wishes.
It does not change what the estate contains or how the assets were owned, and that is what determines whether a grant is needed. A £30,000 savings account in a sole name is released on the death certificate whether or not there is a will. A house in a sole name needs a grant whether or not there is a will.
The one practical difference a will makes is timing. An executor's authority comes from the will and exists from the moment of death; the grant merely confirms it. Where there is no will, nobody has authority until letters of administration are issued. So an executor can begin work at once, instruct an estate agent, and deal with organisations that do not require a grant, while an administrator has to wait.
The asset test, with a will
Go through what the person owned and put each item in one of three columns.
- Joint assets held as joint tenants. The home, joint accounts. They pass to the surviving owner outside the will and outside the estate. No grant.
- Sole-name assets below the holder's limit. Bank accounts under roughly £50,000 at the large banks, NS&I under £5,000, small shareholdings. Released on the death certificate and a form. No grant.
- Sole-name assets above a limit, or sole-name property, or a tenants-in-common share. Grant needed.
If the third column is empty, you do not need probate, and the will is simply the executor's instructions for distributing what comes in. If anything is in the third column, the executor applies for a grant of probate and the grant covers the whole estate.
Our two-minute checker walks through the columns.
What "proving" the will involves
When a grant is needed, the executor applies online through the GOV.UK probate service or on paper using form PA1P, sends the original will (and any codicils) to HM Courts & Tribunals Service, declares the estate's value, and pays the fee of £526 (nothing if the estate is £5,000 or less). The registry checks that the will is validly signed and witnessed, that the applicant is the named executor, and issues the grant with a copy of the will attached. The will then becomes a public document, searchable by anyone for £1.50.
Do not remove staples, write on the will or attach anything to it. The registry looks for marks that might suggest pages were removed, and an explanation will be required.
If no grant is needed the will is never sent anywhere and never becomes public. The executor simply follows it.
When the will causes a problem rather than solving one
- The named executor has died, cannot act or does not want to. Another executor named in the will can apply. If none can, the residuary beneficiary applies for letters of administration "with will annexed": the will still governs the distribution.
- The will is unsigned, unwitnessed or cannot be found. It may be invalid, in which case the intestacy rules apply instead. A missing will that is known to have existed can sometimes be proved from a copy, with evidence.
- The will leaves everything to someone who has since died. The gift usually lapses and passes under the residue clause or intestacy.
- The will sets up a trust. A grant is often needed simply so that the trustees can receive the assets, even where no organisation would otherwise have insisted. See if there is a trust.
Common questions
Does a will avoid probate?
No. A will decides who applies for the grant and who inherits; it has no effect on whether a grant is needed. That depends on what the person owned and how it was held. Jointly owned assets and small sole-name accounts do not need a grant whether or not there is a will; sole-name property and larger sole-name accounts do.
Is probate always needed when there is a will?
No. Around half of estates in England and Wales need no grant at all, and having a will does not change that. If every asset passes by survivorship or sits below the holder's limit, the executor simply distributes according to the will without involving the court.
Is a grant of probate required if there is a will in England?
Only if an organisation holding an asset requires it: the Land Registry for sole-name property, a bank for a sole-name balance above its limit, NS&I above £5,000, and so on. Where a grant is required, the executor named in the will applies for a grant of probate and sends the original will to the probate registry.
What happens to a will if probate is not needed?
The executor follows it. The will stays a private document, is never sent to the court and never becomes public. The executor should still keep it, with a record of how the estate was distributed, in case a question arises later.
Do I need probate for a mirror will?
Mirror wills are simply two wills in matching terms, usually between spouses, each leaving everything to the other. They are treated exactly like any other will. On the first death a grant is often unnecessary because most assets are joint; on the second death a grant is usually needed because everything is in one name.
Does a will have to go through probate to be valid?
No. A will is valid if it was properly signed and witnessed, regardless of whether it is ever proved. Proving it, by obtaining a grant of probate, is only required where an organisation needs the court's confirmation before releasing an asset.
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Important
Solace is not a firm of solicitors and does not provide legal, tax or financial advice. We are an estate administration service and we are not regulated by the Solicitors Regulation Authority, the Financial Conduct Authority or any equivalent body. Nothing in this guide constitutes legal, tax or financial advice, and no solicitor–client relationship is created by reading it.
This article is general information only. It reflects the position in England and Wales at the date shown above; the law and the figures change, and Scotland and Northern Ireland differ in important respects. It may not apply to your circumstances. Whether a particular estate needs a grant is ultimately decided by the organisations holding the assets, and their limits change. Administering an estate carries personal legal responsibility, and you should obtain advice from a qualified solicitor, accountant or other regulated professional where appropriate. Always check current rates, fees and deadlines against GOV.UK before acting.