Probate is one of those words people hear for the first time in the worst possible week. A parent has died, the bank will not release the account, the estate agent wants paperwork, and somebody has to work out what the legal process actually is.

It is worth stripping away the mystique. Probate is not a court case and it is not a tax. It is a document that confirms who has the legal right to deal with the money, property and possessions of the person who died.

What probate actually is

The government's guidance on applying for probate describes probate as the legal right to deal with someone's property, money and possessions when they die, and warns against making financial plans or putting a property on the market before it has been granted.

The name of the document depends on the circumstances. Where there is a will, the executors named in it receive a grant of probate. Where there is no will, or the will names no executor who can act, the closest living relative applies instead and receives letters of administration. Both do the same job: they satisfy banks, insurers and the Land Registry that the person holding the document is entitled to act.

Plenty of estates never need it

The assumption that every death triggers probate is wrong, and acting on it wastes money.

Whether probate is needed depends on what the person owned and on the rules of the organisations holding it. Government guidance is direct about this: contact the bank, mortgage company and other financial organisations the person used, because every organisation has its own thresholds.

Probate may not be needed at all where the person who died only had savings, or held money or shares jointly with someone else, or owned land or property as joint tenants. In those cases the assets normally pass automatically to the surviving owner.

A jointly owned home is the point most often misunderstood. Property held as joint tenants passes to the survivor outside the estate. Property held as tenants in common does not, and the deceased's share falls to be dealt with as part of the estate.

Inheritance tax comes first

The order of events surprises people. You cannot apply for probate and then work out the tax afterwards.

Before applying, the value of the estate has to be worked out, following the government's guidance on valuing an estate. If the estate owes inheritance tax, its value must be reported within a year using form IHT400, and the probate application cannot proceed until that has been done.

There is also a payment deadline that runs independently of the probate application. Government guidance on paying inheritance tax requires the tax to be paid by the end of the sixth month after the person died, with interest charged on late payment. In practice a payment towards the bill usually has to be made before the grant is issued, which is why estates that are asset-rich but cash-poor can find themselves stuck.

What it costs

The fees are fixed and modest by comparison with the value of most estates.

Where the estate is worth more than £5,000, the application fee is £526. There is no fee where the estate is £5,000 or less. Extra copies of the probate document cost £2 each if ordered with the application, and £16 each afterwards, which is worth knowing because each organisation holding an asset will usually want to see one.

Help with fees is available for people on a low income or receiving certain benefits, either through an online application or on form EX160.

How long the wait really is

This is where expectations and reality part company.

Government guidance states that a grant of probate or letters of administration usually arrives within 12 weeks of submitting the application, and that it can take longer where the Probate Service needs further information. Anyone who applied by post and has heard nothing within 12 weeks is told to contact the Courts and Tribunals Service Centre.

Twelve weeks is the wait for the document alone. It does not include the time spent before the application gathering valuations and dealing with inheritance tax, or the time afterwards collecting in assets, settling debts, selling a property and distributing what is left. A straightforward estate taking most of a year from death to final distribution is normal rather than negligent.

One consequence is rarely mentioned in advance. Once a grant is issued, the will and any codicils are kept by the probate registry and become a public record, so anyone can obtain a copy.

After the grant

The grant is the beginning of the administration, not the end of it.

Government guidance on dealing with the estate sets out what follows: collecting in the money and property, paying debts and any remaining tax, keeping accounts and then distributing the estate to the beneficiaries. Executors and administrators are personally responsible for getting this right, which is why paying out early, before debts and tax are settled, is such a common and expensive mistake.

Citizens Advice guidance on dealing with the financial affairs of someone who has died is a useful plain-English companion for anyone doing this without a solicitor.

Different rules elsewhere in the UK

This article covers England and Wales, and the process is not UK-wide.

Scotland does not use probate. The equivalent authority is called confirmation, obtained through the sheriff court, and the surrounding rules on what a surviving spouse and children are entitled to differ as well. Official information is available from mygov.scot on death and bereavement.

Northern Ireland has its own probate system, explained by nidirect.

Where someone lived in one part of the UK and owned property in another, more than one process may be involved.

Official sources used: