Wills & Probate Guide
Wills & Probate: Making a Will & Dealing with an Estate
Why you need a will, what happens without one, how probate works, executor duties, inheritance tax, and what to do when an estate is disputed.
Why Making a Will Matters
More than half of adults in England and Wales do not have a will. This means that when they die, their estate is distributed according to the intestacy rules — a rigid legal formula that may bear no resemblance to their actual wishes.
The most common misconception is that unmarried partners are protected. They are not. Under the intestacy rules, an unmarried partner — however long the relationship — receives nothing. The entire estate goes to children, or if there are no children, to parents and siblings.
A will allows you to decide exactly who receives your estate, appoint trusted executors to administer it, name guardians for minor children, make specific gifts of personal possessions, and potentially reduce the inheritance tax liability on your estate.
How Probate Works
When someone dies, their estate must be administered — assets collected, debts paid, and the remainder distributed to beneficiaries. This process is called probate (or estate administration). The executor named in the will applies to the Probate Registry for a Grant of Probate, which is the legal document that authorises them to deal with the estate.
If there is no will, the next of kin applies for Letters of Administration, which serves the same purpose. The person appointed is called an administrator rather than an executor.
The probate process involves: registering the death; valuing the estate; completing the inheritance tax return (if required) and paying any IHT due; applying for the Grant; collecting assets (closing bank accounts, selling or transferring property); paying debts and expenses; and distributing the estate to beneficiaries.
A straightforward estate with no property, no IHT, and no disputes can be administered in 6–9 months. Complex estates take longer.
Inheritance Tax Planning
Inheritance tax is charged at 40% on the value of an estate above the nil-rate band (£325,000). With the residence nil-rate band (£175,000 for those leaving their home to direct descendants), a married couple can potentially pass up to £1 million to their children free of IHT.
Effective IHT planning can significantly reduce the tax burden on your estate. Strategies include: making gifts during your lifetime (potentially exempt after 7 years); using trusts; making charitable gifts (which reduce the IHT rate to 36% if 10% or more of the estate is left to charity); and maximising the use of available reliefs such as Business Property Relief and Agricultural Property Relief.
Frequently Asked Questions
Why do I need a will?
Without a will, your estate is distributed according to the intestacy rules, which may not reflect your wishes. The intestacy rules prioritise spouses and civil partners, then children, then other relatives. Unmarried partners receive nothing under the intestacy rules, regardless of how long you have been together. A will also allows you to appoint executors, guardians for minor children, and make specific gifts.
What happens if I die without a will (intestate)?
If you die without a will, the intestacy rules determine who inherits your estate. If you are married with children, your spouse receives the first £322,000 (the statutory legacy, updated periodically) plus half of the remainder, with the other half going to your children. If you are unmarried, your partner receives nothing — your estate goes to your children, or if you have no children, to your parents, siblings, and so on down the family tree.
What makes a will legally valid?
To be legally valid in England and Wales, a will must: be in writing; be signed by the testator (the person making the will) in the presence of two witnesses; and be signed by both witnesses in the presence of the testator. Witnesses and their spouses or civil partners cannot benefit from the will. The testator must have testamentary capacity (be of sound mind) and must not be acting under undue influence.
What is probate?
Probate is the legal process of administering a deceased person's estate. It involves obtaining a Grant of Probate (if there is a will) or Letters of Administration (if there is no will), which gives the executor or administrator the legal authority to deal with the estate — collecting assets, paying debts, and distributing the estate to beneficiaries.
Do I always need probate?
Not always. Probate is generally required to deal with property, shares, and bank accounts above a certain threshold (usually £5,000–£50,000 depending on the institution). Assets held jointly (such as a jointly owned property or joint bank account) pass automatically to the surviving owner and do not require probate. Small estates may be dealt with without a Grant.
How long does probate take?
A straightforward probate typically takes 6–12 months from the date of death to final distribution. Complex estates — those involving property, business interests, foreign assets, or disputes — can take 2–3 years or more. The Probate Registry currently takes around 4–8 weeks to issue a Grant once the application is submitted.
What is inheritance tax and when does it apply?
Inheritance tax (IHT) is charged at 40% on the value of an estate above the nil-rate band (currently £325,000). The residence nil-rate band (currently £175,000) may also apply if you leave your home to direct descendants. Transfers between spouses and civil partners are exempt from IHT. Gifts made more than 7 years before death are generally exempt. Careful estate planning can significantly reduce the IHT liability.
What are the duties of an executor?
An executor is responsible for: registering the death; obtaining the Grant of Probate; collecting all assets; paying all debts, taxes and expenses; filing the inheritance tax return (if required); and distributing the estate to beneficiaries. Executors have a legal duty to act in the interests of the beneficiaries and can be held personally liable for losses caused by negligence or breach of duty.
Can a will be challenged?
Yes. A will can be challenged on several grounds: lack of testamentary capacity (the testator did not understand what they were doing); undue influence (the testator was pressured into making the will); fraud or forgery; or failure to comply with the formal requirements. A claim can also be made under the Inheritance (Provision for Family and Dependants) Act 1975 if a person who was financially dependent on the deceased was not adequately provided for.
What is a Lasting Power of Attorney and should I have one?
A Lasting Power of Attorney (LPA) is a legal document that allows you to appoint someone to make decisions on your behalf if you lose mental capacity. There are two types: a Property and Financial Affairs LPA (covering bank accounts, property, investments) and a Health and Welfare LPA (covering medical treatment and care decisions). An LPA must be registered with the Office of the Public Guardian before it can be used. Everyone over 18 should consider making an LPA — without one, your family may need to apply to the Court of Protection, which is expensive and time-consuming.
Speak to a Wills & Probate Solicitor
PDA Law's wills and probate team can help you make a will, administer an estate, or resolve a disputed inheritance. We offer fixed fees for straightforward wills and probate matters.