Do You need Probate If There is a Will?

This article provides general information about probate and estate administration in England and Wales. It is not a substitute for personalised legal or tax advice. Probate requirements and tax treatment depend on the circumstances of the estate. Scotland and Northern Ireland have different processes.

Having a will does not automatically mean probate is unnecessary. If someone dies leaving a valid will, the executors named in it may still need to obtain a Grant of Probate before they can deal with certain property, accounts or investments. Whether probate is required depends mainly on what the person owned, how those assets were held and the requirements of the organisations holding them, rather than simply whether a will exists.

Some straightforward estates can be administered without probate. Others will need a grant before the executor can move forward.

What Does a Will Actually Do?

A will and probate perform two different jobs.

A valid will records what someone wants to happen to their estate after their death. It can set out:

• who should inherit
• who should act as executors
• who should care for children under 18
• how specific possessions or gifts should be dealt with
• whether trusts should be created under the will

Through our will writing service, we help people put those wishes into a properly prepared will so there is greater clarity for the people dealing with their estate later.

Probate comes afterwards. Where a Grant of Probate is required, it provides evidence of the executor's legal authority to deal with relevant assets in the estate. Put simply, the will explains what should happen, while probate may provide the authority needed to put those instructions into effect.

When Might Probate Not Be Necessary?

A will can still exist even where an estate is simple enough to administer without obtaining probate.

Most Assets Were Owned Jointly

How assets are owned makes a significant difference.

For property in England and Wales, joint owners can generally hold it as either joint tenants or tenants in common. Government guidance on joint property ownership explains that property owned as joint tenants normally passes automatically to the surviving owner when one owner dies.

That means the deceased person's interest does not pass under their will in the same way as an individually owned asset.

Tenants in common are different. Each owner has a distinct share, and the deceased person's share can form part of their estate and pass under their will.

In simple terms:

• Joint tenants: the property normally passes to the surviving joint owner.
• Tenants in common: the deceased person's share forms part of their estate.

Joint bank accounts may also pass to a surviving account holder, depending on how the account is structured.

The Estate Contains Only Limited Savings

Some banks and building societies will release funds without asking for a Grant of Probate.

There is no single universal threshold that applies to every institution, however.

One bank may be willing to release an account without probate while another may require a grant for a similar balance.

Executors should therefore contact each provider and ask exactly what documents are required.

Some Assets Pass Outside the Will

Not every asset necessarily passes according to the terms of a will.

Certain jointly owned assets may pass automatically to another owner. Some trust arrangements can also affect whether an asset falls into the estate available for distribution under the will.

How an asset is owned can determine what happens to it after death, so reviewing ownership arrangements is an important part of estate planning.

When Is a Grant of Probate More Likely to Be Required?

Probate is generally more likely where the estate includes significant assets held solely in the deceased person's name.

Examples can include:

• a house or land owned solely by the deceased
• substantial savings in sole accounts
• investment portfolios
• shares registered solely in one name
• assets held by organisations that specifically require a grant
• estates involving several different financial providers

A straightforward will does not necessarily mean the estate itself will be straightforward to administer.

Executors may still need to identify and value assets, settle debts, deal with tax matters and distribute the remaining estate to the beneficiaries.

Does Having a Will Make Probate Easier?

A properly prepared will can make estate administration much clearer, even where probate is still needed.

Most importantly, the will can identify who the deceased wanted to act as executors.

It can also make clear:

• who should receive particular assets
• how the remainder of the estate should be divided
• whether particular gifts should be made
• whether trusts should arise
• who should take responsibility for administering the estate

Without a valid will, there is no will-appointed executor. The estate instead has to be administered under the intestacy rules, and an eligible person may need to apply for authority to deal with it.

A will should therefore not be viewed simply as a way of trying to avoid probate. Its main purpose is to leave clear instructions about what should happen to your estate after your death.

What Happens If an Executor Cannot Act?

Sometimes a valid will exists, but one of the executors named in it is unable or unwilling to administer the estate.

For example, an executor may have died before the person who made the will, or they may decide they do not want to take on the responsibility.

If several executors were appointed, another executor may still be able to proceed.

Where more than one executor is named, an executor who does not want to apply immediately may be able to have power reserved. An executor can also formally renounce their right to apply, which is generally intended to be permanent.

Where nobody named in the will can act, the procedure can become more complicated. Professional advice may be useful in these circumstances.

What Should an Executor Do First?

If you have been named as an executor, you do not necessarily need to start by completing a probate application.

Start by building an accurate picture of the estate, including its assets, debts and ownership arrangements.

Locate the Original Will

Find the original signed will and check whether any later wills or codicils exist.

Keep the original will intact, as the original document is normally required for a probate application.

Identify Assets and Debts

Build a clear picture of the estate, including:

• property
• bank and savings accounts
• investments
• pensions where relevant
• personal possessions
• mortgages
• loans
• credit cards
• other liabilities

Check How Assets Are Owned

Establish whether property, investments and accounts were held solely or jointly.

For property, check whether it was owned as joint tenants or tenants in common.

Contact the Relevant Organisations

Ask banks, investment providers and other organisations what documents they require following the account holder's death.

This is often the point at which it becomes clearer whether probate will be needed.

Value the Estate

Before applying for probate, you will need to value the estate and establish whether Inheritance Tax reporting or payment requirements apply.

Government guidance on valuing an estate for Inheritance Tax explains how executors should identify assets and debts, estimate their values and establish whether details need to be reported to HMRC.

Keeping organised records of valuations, correspondence and payments can make the administration process much easier to manage.

Does Probate Mean Inheritance Tax Is Due?

No. Probate and Inheritance Tax are connected parts of estate administration, but they are not the same thing.

An estate can require probate without having any Inheritance Tax to pay. The estate still needs to be valued and, depending on its circumstances, details may need to be reported to HMRC before the probate application can proceed.

The government's Inheritance Tax guidance explains the main rules, thresholds and circumstances in which tax may be payable.

Where Inheritance Tax is due, some of the tax will normally need to be paid before probate is granted.

Where an estate includes property, lifetime gifts, trusts or other substantial assets, the position can become more complex. Our Inheritance Tax service can help where tax considerations form part of wider estate planning. Individual tax circumstances can vary, so specialist tax or legal advice may also be appropriate.

Can Writing a Will Help You Avoid Probate?

Not necessarily.

A will can provide clarity, but simply having one does not prevent probate from being required.

Whether probate is needed will still depend on:

• what you own
• how your assets are held
• whether property is owned jointly or solely
• the requirements of banks and investment providers
• the overall structure of the estate

Whether probate may eventually be required is only one factor to consider when arranging your estate.

Clear records of your assets, ownership arrangements and wishes can also make it easier for executors to understand what they need to deal with.

Does a Will Mean You Can Skip Probate?

Not necessarily. The existence of a will does not decide whether probate is required.

What matters is what the person owned, how those assets were held and whether the organisations controlling them require a Grant of Probate before they will release or transfer them.



For some estates, jointly owned assets and simple financial arrangements may mean probate is unnecessary. For others, particularly where property or substantial assets are held solely, obtaining a grant may be an important part of administering the estate.

A well-prepared will cannot guarantee that probate will be avoided. What it can do is record your instructions and identify the people you want to act as executors, giving those dealing with your estate a clearer starting point.