Reading time: 5 mins

If you are stepping into the world of estate planning or dealing with the affairs of a loved one who has recently passed away, you have likely encountered two inescapable terms: Wills and Probate.

A common and completely understandable misconception is that if you have a legally valid Will, you don’t need to worry about probate. Unfortunately, that is rarely the case.

To help you navigate the process, this guide breaks down the relationship between Wills and probate, how they interact, and why having one doesn’t necessarily eliminate the need for the other.

What is a Will?

Think of a Will as an instruction manual. It is a legally binding document that outlines exactly what you want to happen to your money, property, and possessions (collectively known as your estate) after you die.

Crucially, a Will allows you to:

• Appoint executors (the people you trust to carry out your wishes).
• Name your beneficiaries (the people or charities who will inherit your assets).
• Appoint legal guardians for any children under the age of 18.

However, an instruction manual is only useful if the person reading it has the authority to act on it. That is where probate comes in.

What is Probate?

Probate is the legal and financial process of dealing with the estate of someone who has died. More specifically, it refers to the legal authority granted to the executors to access, manage, and distribute the deceased’s assets.

In England and Wales, the official document issued by the Probate Registry is called a Grant of Probate. Without this document, banks, building societies, and the Land Registry will usually refuse to let the executor access the deceased’s money or sell their property.

In short: A Will states who gets your assets and who is in charge of sorting it out. Probate is the legal permission slip that allows those chosen people to actually do the job.

The Core Relationship: Why a Will Doesn’t Skip Probate

Having a Will makes the probate process significantly smoother, but it does not bypass it.

When a bank is holding thousands of pounds belonging to someone who has died, they need absolute, legally backed certainty that they are handing those funds over to the right person. A Will alone isn’t enough, because a bank teller cannot verify if it is the most recent Will, or if it was signed under duress.

The Grant of Probate acts as the ultimate legal seal of approval. The probate process verifies that:

1. The Will is legally valid.
2. The executors named are correct and willing to act.
3. Any necessary Inheritance Tax (IHT) has been reported and paid to HM Revenue & Customs (HMRC).

When is Probate Required?

Whether you need to apply for probate depends entirely on the size and nature of the estate, not on whether a Will exists. You will almost always need probate if the deceased left behind:

• Property or land held in their sole name (or as ‘tenants in common’).
• Savings or premium bonds above a certain threshold (banks set their own limits, usually between £10,000 and £50,000).
• Shares or investment portfolios.

What Happens if There is No Will?

If someone dies without a Will, they are said to have died intestate.

In this scenario, probate is still required, but the process changes. Because there is no Will to appoint executors, a close relative must apply to the Probate Registry for a Grant of Letters of Administration rather than a Grant of Probate.

The relationship here is dictated by the government. Instead of the deceased’s wishes guiding the distribution of assets, the strict Rules of Intestacy take over. These rules decide who inherits the estate in a rigid hierarchy, starting with a spouse or civil partner, followed by children, and moving outwards to more distant relatives.

Can You Ever Avoid Probate?

Yes, but only in specific circumstances. A Grant of Probate may not be necessary if:

• The estate is small: If the deceased only left behind a few thousand pounds, banks will often release the funds upon seeing a death certificate and a signed indemnity form.
• All assets are held jointly: If a married couple owns their home as ‘joint tenants’ and only holds joint bank accounts, those assets automatically pass to the surviving spouse under the rule of survivorship. In this case, a Will is still vital for when the second spouse passes away, but probate may not be needed for the first death.

Complete Peace of Mind: Lasting Power of Attorney (LPA)

While a Will protects your assets after you pass away, it is equally important to consider what happens during your lifetime if you ever lose the mental capacity to make your own decisions. This is where a Lasting Power of Attorney (LPA) becomes vital. Read our insights and find out how an LPA and a Will work together to give you the best reassurance and complete protection for every stage of life.

Summary

Wills and probate are two sides of the same coin. A well-drafted Will is the foundation of good estate planning; it prevents family disputes, mitigates tax, and ensures your voice is heard after you are gone. Probate is simply the legal mechanism that brings those written wishes to life.

By understanding how they work together, you can better prepare your own estate—and save your loved ones a significant amount of stress during a difficult time.

If you need help or advice on wills and probate, please get in touch with us. We offer free initial consultation for new clients. Home visits are available in certain areas. Contact us to find out more.

Related Services