Does a Trust Avoid Probate in England and Wales?
In the US, living trusts are widely used to avoid probate. In England and Wales, the position is different — and much misunderstood. This guide gives the accurate answer for England and Wales.
The short answer
- Lifetime (inter vivos) trust: assets are outside your estate — no probate needed for those assets.
- Will trust: probate is still required first; the trust takes effect after the grant of probate.
- Simpler alternatives: joint tenancy, pension nominations, and life insurance in trust all bypass probate without the cost of a lifetime trust.
Which assets bypass probate without a trust?
| Asset type | Bypasses probate? | How |
|---|---|---|
| Joint tenancy property | Yes | Right of survivorship — register Form DJP at Land Registry |
| Pension (nominated beneficiary) | Yes | Trustees pay to nominee; outside estate |
| Life insurance in trust | Yes | Insurer pays to trust beneficiaries directly |
| Joint bank account | Yes | Passes to surviving account holder automatically |
| Lifetime trust assets | Yes | Outside estate at death — trustees hold already |
| Will trust assets | No — probate first | Will trust takes effect only after grant of probate |
| Assets named in a will (sole ownership) | No | Must go through probate to give executor authority |
| Tenants in common property | No | Deceased's share must go through probate |
Frequently asked questions
Does a trust avoid probate in England and Wales?
The short answer is: it depends on when and how the trust was set up. LIFETIME (INTER VIVOS) TRUST — AVOIDS PROBATE: if you transfer assets into a trust during your lifetime, those assets are no longer legally yours at the date of your death. They belong to the trust. Because the assets are not in your estate at death, they do not go through the estate administration process and no grant of probate is needed to deal with them. The trustees already hold the assets and can deal with them after your death under the trust deed — without applying to the Probate Registry. WILL TRUST — DOES NOT AVOID PROBATE: if your will creates a trust (for example, 'I leave my estate to trustees to hold on trust for my children until they reach 25'), the trust does not come into existence until after your will is proved. The executor must first obtain a grant of probate (which proves the will is valid and gives the executor authority to deal with the estate). Once probate is granted, the executor can then transfer assets to the trustees of the will trust. So a will trust still requires probate — the trust just takes effect after probate is granted rather than during your lifetime. WHY THE CONFUSION WITH THE US: in the United States, 'living trusts' (revocable trusts) are widely used as a probate-avoidance tool because US probate is often slow and expensive. In England and Wales, probate is more straightforward and less costly than US probate, and the property transfer on death without probate is available through other simpler means (joint tenancy, nominations). The US advice about trusts avoiding probate does not automatically apply in England and Wales.
What assets bypass probate in England and Wales without a trust?
Several categories of asset pass outside the estate without probate in England and Wales — no trust required: JOINT TENANCY PROPERTY: if you own property as beneficial joint tenants, the surviving co-owner inherits your share automatically by right of survivorship on your death. No probate is needed for this asset. The surviving owner simply registers the death at the Land Registry using Form DJP. NOMINATED PENSION BENEFITS: if you nominated beneficiaries on your pension's expression of wishes, the pension trustees pay the death benefit directly to them on your death. No probate required. The pension is outside your estate. LIFE INSURANCE WRITTEN IN TRUST: if your life insurance policy was written in trust (the insurer holds it on trust for named beneficiaries), the insurer pays out to the beneficiaries directly on your death without the policy forming part of the estate. No probate. JOINT BANK ACCOUNTS: most joint bank accounts pass automatically to the surviving account holder on the death of one holder. Banks will close the account and transfer the balance without probate (though they will ask for a death certificate). SMALL ESTATES: if the total estate is small enough (each financial institution has its own threshold — often £5,000–£50,000), the institution may release funds without probate on production of an indemnity or small estate declaration. ASSETS ALREADY IN TRUST: as noted above, assets already in a lifetime trust are outside the estate entirely. NOMINATIONS: some other assets allow nominated beneficiaries (e.g., some savings accounts, NS&I premium bonds up to certain limits under the Administration of Estates (Small Payments) Act 1965).
Is it worth setting up a lifetime trust to avoid probate in England and Wales?
In England and Wales, probate avoidance alone is rarely a good reason to set up a lifetime trust. Here is why: PROBATE COST IN ENGLAND AND WALES IS MODEST: the Probate Registry fee is £300 for estates over £5,000 (plus £1.50 per official copy). A straightforward DIY probate application can be done for a few hundred pounds. Compare this to the US, where probate court fees and attorney costs can run to 3–5% of the estate. SOLICITOR-DRAFTED LIFETIME TRUSTS ARE EXPENSIVE: setting up a properly drafted discretionary trust typically costs £1,500–£5,000 in solicitor fees, plus annual trustee fees if professional trustees are appointed, plus the 10-year periodic IHT charge (6% of assets in the trust above the NRB). TRUST ADMINISTRATION IS ONGOING: lifetime trusts require annual accounts, trustee resolutions, and potentially annual income tax returns. This is ongoing administration cost that most estates do not need. WHEN A LIFETIME TRUST IS WORTHWHILE — REASONS OTHER THAN PROBATE AVOIDANCE: (1) protecting assets for a disabled beneficiary; (2) protecting assets from a beneficiary's creditors or divorce; (3) preserving means-tested benefits for a vulnerable beneficiary; (4) asset protection for a second marriage; (5) tax planning (though the IHT periodic charge and income tax treatment at trust rates mean trusts often accelerate rather than reduce tax); (6) keeping family matters private (wills are public documents once probate is granted; a lifetime trust deed is private). FOR MOST FAMILIES: the combination of joint tenancy (for the family home), pension nominations, life insurance in trust, and a straightforward will achieves most of what a lifetime trust would achieve — without the cost and complexity.
Does a discretionary trust in a will avoid probate?
No — a discretionary trust (or any other type of trust) created by a will does not avoid probate. A will trust only comes into existence after the will has been proved. The sequence is: (1) death; (2) executor locates the will; (3) executor applies to the Probate Registry for a grant of probate; (4) grant is issued — the will is now proved and the executor has authority to deal with the estate; (5) executor administers the estate (paying debts, IHT, and estate costs); (6) executor transfers the relevant assets to the trustees of the will trust. Steps 3–5 must happen before the trust trustees take control of the assets. A discretionary trust in a will is an excellent tool for inheritance tax planning and protecting assets for beneficiaries, but it does not avoid or speed up the probate process. If avoiding probate is the goal, a lifetime trust (inter vivos trust) or other non-estate assets (joint tenancy, pension nominations, life insurance in trust) are the appropriate tools.
Can life insurance in trust avoid probate and inheritance tax?
Yes — a life insurance policy written in trust avoids both probate and inheritance tax (subject to conditions). AVOIDS PROBATE: because the policy is held in trust, it does not form part of your estate at death. The insurer pays the death benefit directly to the trust beneficiaries (your named beneficiaries — typically your spouse and children). No grant of probate is required for this payout. Beneficiaries typically receive the money within days or weeks of a successful claim, compared to months for an estate going through probate. AVOIDS IHT: because the policy is outside your estate (it belongs to the trust, not you), its value is not added to your estate when calculating IHT. A £500,000 life policy outside the estate means £500,000 is not subject to IHT. If the same policy were not in trust, the estate would include the £500,000 payout, and 40% IHT would apply to any amount above the NRB — a potential IHT bill of £70,000–£200,000 depending on the size of the estate. HOW TO SET IT UP: when you take out a life insurance policy, the insurer will offer you a trust deed to complete. Most term policies can be assigned into a simple absolute trust (naming specific beneficiaries) or a discretionary trust (allowing trustees to vary who benefits). Completing the trust deed is usually free and takes minutes. You can also write an existing policy into trust — contact your insurer. NOTE: if you pay premiums for the policy out of your income or savings, the premiums leave your estate (money spent = no longer an estate asset). If the policy pays out into a trust, the proceeds are also outside the estate. Both the premiums and the proceeds are therefore effectively outside the IHT estate.
Related guides
Write a will that works alongside your estate plan
A well-drafted will coordinates with your joint tenancy, pension nominations, and any life insurance in trust. WillSafe walks you through every step.