Is a Will Valid Without Probate?

In most circumstances, a will should be recognised by the court before it is distributed. This process is known as probate. Not every will requires probate to be passed, but it is necessary for some aspects, including officially naming executors to carry out the will, and for wills that have a significant amount of value to give away. In both of these cases, you will need to go through probate.

You can organise and complete probate without the help of a legal professional, but it is a very complex process and can take a long time. To avoid errors that could cause wasted time and expenses, it is highly recommended that you employ the services of an expert probate solicitor.

To learn about probate and whether it is necessary for you, read our guide.

What is Probate?

Depending on the circumstances, a will may require a grant of probate before it can be managed. This grant is given by the court and must be obtained by any executors who are responsible for managing and distributing a will. Probate is also used to describe the process of dealing with a will as a whole, but a grant of probate specifically refers to the authority given to the executors of a will. 

If no executor is named in the will, one may have to be appointed by the beneficiaries, and may then have to go through probate to be acknowledged by the court.

The process of probate is as follows:

• Identifying and summarising the assets and liabilities of the deceased, and the beneficiaries and their entitlement
• Calculating, submitting and paying the correct amount of Inheritance Tax to HMRC
• Applying to the Probate Registry for a grant of probate, or another relevant type of grant of representation. This must be granted before the administration can continue
• Settling the deceased’s liabilities, including liquidating their assets and paying any remaining administration costs and tax
• Ensuring that all of the deceased’s accounts are ready and approved by the executor for the transferring of assets - finance, property, etc.
• Transferring the assets to the beneficiaries

To successfully carry out the probate process, the executors must have a strong understanding of everything that the deceased owns, what tax is required to be paid and how to approve the accounts. While this can be done completely by the executors, a professional solicitor with expertise in wills, trusts and estate affairs will be able to provide advice and guidance on every aspect of and throughout the entire process.

Read about if an executor can challenge a will.

Do I Need a Grant of Probate?

Whether or not you require a grant of probate depends on the extent of the estate. If the assets are of a high value or were held solely by the deceased, you may be required to go through the probate process, and an appointed executor will require a grant of probate. In this case, regardless of whether a will was left or not, probate will be necessary for lawful execution.

Alternatively, if no will was left by the deceased, you may have to apply for a grant of letters of administration. This works in a similar way to grants of probate and allows the executor and beneficiaries to appeal to the court about who is entitled to deal with the estate and who will receive which parts of the estate.

Other grants of representation include:

• Grant of letters of administration with will annexed - can be granted to a beneficiary if there are no executors dealing with the will, allowing them management responsibilities
• Grant of ad colligenda bona - for short-term urgent action to distribute an asset that is causing an issue
• Grant of administration de bonis non - granted when there is no remaining chain of representation due to the death of the last personal representative of the will
• Grant pendant lite - issued to an administrator to maintain the will in the event of court proceedings dealing with the estate
• Grant under Section 113 and 116 (Senior Courts Act 1981) - allows the court of a person who can not take out another type of grant to manage the estate
• Grant of double probate - allows another executor to act after they have been issued another grant

JMW Can Help

Dealing with probate can be confusing and highly stressful, and the expert solicitors at JMW understand this. As well as being able to help you to navigate the complexities of probate law, we operate in a way that is sensitive to you and the other people involved in the will. We will work efficiently to make sure the wills process is completed as quickly as possible without sacrificing attention to detail and the chances of success that such cases demand.

By offering you advice and guidance throughout the process, we can inform you on exactly what you need to do to pass probate, which taxes need to be paid, and how much, and can even advise on how to reduce this in compliance with HMRC.

For more information about our expert wills, trusts, and estate services, call JMW today on 0345 872 6666 or fill out an online enquiry form and we will get back to you.