Do I need to apply for probate?
Not everyone needs to go through probate as the requirement for probate is not solely dependent on a person’s death but on the assets in their estate. In the simplest explanation, a grant of probate is needed to release the assets of a person who has passed away and owned assets in their sole name, worth over a certain value.
If the deceased held assets of significant value in their sole name, for example property, you would need to apply for probate.
Not every estate will require probate in order to be administered. Estates that are made up of assets owned jointly or of low value often do not require probate and can be administered with little complication. However, that does not mean the assets they have do not need to be handled correctly.
Do I need probate if there is a Will?
Even if the deceased left a valid Will the estate may still need probate. The assets in the estate dictate whether probate is required not the existence of a Will.
A property held in the deceased’s sole name will always require probate. However, a property that is held as joint owners will not require probate as the property will pass to the surviving owner under the laws of survivorship.
Please note that tenants in common is different to joint tenants and will, in most cases, require a grant of probate in order for the deceased’s share to be transferred to the beneficiaries. You can read more about the differences between Joint tenants and tenants in common.
When a property is owned joint it must be transferred from both owners’ names into the sole name of the surviving owner through HM Land Registry. This must be done so that HM Land registry can keep an up to date record of ownership and will mean that this extra step will not need to be done when the remaining owner sells the property or passes away.
Banks and building societies
You will need a grant of probate to access money in bank accounts held by the deceased in their sole name if the value is over a certain amount. You would not require probate to collect assets held in banks or building societies when the total value of assets held is under the Institution’s threshold for probate (what they will release without a grant of probate). Every Institution will have its own threshold amount, in cases where there is no will this threshold is dramatically reduced. You will be asked to provide a grant of probate if the value of assets is over that institution’s threshold.
Bank accounts that are held by the deceased and another person in joint names will not need probate. However, you will need to inform the bank or building society of the death so that they can update their records and remove the Deceased’s name from the account turning it into a sole account of the surviving owner.
It is important to note that being a Signer on an account is different from being a joint owner of an account. A signer has no rights to the account other than the want has been authorized by the owner whilst they are alive or by the institution where the account is held. In this circumstance upon the death of the owner, the account will be frozen until probate has been obtained (depending on if the amount held is over the institution’s threshold).
You should contact the pension provider as soon as possible so they can make the necessary arrangements and stop payments to the deceased.
Once you have informed the pension provider and provided a copy of the death certificate and Will (if applicable) they will provide you with information regarding what will happen to the pension. There are 3 possible outcomes when it comes to pensions, and these depend on the type of pension that they have.
- The first outcome would be that the pension will simply stop, and in this circumstance, you will not require a grant of probate.
- The second outcome would be for the pension to transfer to the deceased’s spouse or civil partner at a widow’s rate (if applicable), you should also not require a grant of probate in order to do this.
- The final outcome is for the pension to pay out a lump sum, depending on the value of the pension, the pension provider’s threshold or other circumstances they may ask you to provide a grant of probate.
Life Insurance policies
A life insurance policy that was set up to be paid to a named beneficiary will not require probate. However, a policy that has no named beneficiary and therefore is to be paid into the deceased’s estate may require probate depending on the value of the policy.
Foreign assets can add unforeseen complications to an otherwise simple estate, as although you may not require probate for the deceased’s estate held in England and Wales you may still require the equivalent in the other country in which they held assets.
Every country has their own inheritance laws and procedures so if the deceased had assets abroad in their sole name you should investigate the inheritance laws in the country that those assets are held or seek the advice of a professional in that country who can advise on what needs to be done to handle those assets.
If the deceased was a director, partner or owner of a business special care should be taken when administering their business affairs. Although someone’s personal assets may not require probate their business assets might, for this reason, it is recommended to seek the advice of a professional.
The beneficiary of a trust
If the deceased was a beneficiary of a trust you will need to look into how their trust assets need to be handled. When it comes to trusts it is not always a simple case of closing it down and distributing it. Whether or not you can handle the trust and its assets without probate will depend on how that specific trust was set up.
Trust set up under the terms of the will
It does happen that an estate that does not require probate, will detail the setting up of a Trust. It could be for any number of reasons that the deceased included a trust in their will and although you may not need probate for their assets you should still seek professional advice when approaching the trust portion of the administration. Trusts can be complicated and if not set up correctly will be ineffective, it is also not something you should ignore if there was a trust written into the will it was probably for a specific reason.