Is probate needed when there is a surviving spouse?
What is probate?
The term probate is often used to describe the process of administering a deceased persons estate and applying for a grant of probate. A grant of probate confirms the executors/administrators right to handle the deceased’s estate and is required to access assets held in the deceased’s sole name in order to distribute them to the beneficiaries named in the Will or through the Rules of Intestacy. Probate is not required for assets owned jointly with another person, for example a surviving spouse or civil partner. As assets held jointly will usually pass over automatically to the surviving owner.
When does an estate with a surviving spouse/civil partner require probate?
When there is a surviving spouse or civil partner it is less likely that probate will be required but does not completely eliminate the possibility of probate. There are no special exemptions for spouses and civil partners, but probate is less often required because it is common that there are little to no assets held in the deceased’s sole name. It is very common for married couples or civil partners to hold their assets jointly eliminating the need for a grant of probate, as joint assets will usually pass directly to the surviving owner.
However, there are still cases where a grant of probate is required even when there is a surviving spouse/civil partner. You will need to apply for a grant of probate when there are assets of significant value held in the deceased’s sole name. These assets could be property, cash held with financial institutions etc.
Types of assets that typically need probate regardless of whether there is a surviving spouse or civil partner
If the deceased held property in their sole name a grant of probate will always be required. As property is usually the most expensive asset in a person’s estate, in order for the ownership to be transferred to the intended beneficiary/beneficiaries (regardless of who they are) a grant of probate is required.
When a property is held in joint names it will automatically pass to the surviving owner, this is known as ‘the right of survivorship’. Joint tenancy is also the most common ownership type between spouses and civil partners. Although a grant of probate is not required in this circumstance, HM land registry should still be informed so they can update their records to show the correct ownership.
Where a lot of executors get confused is when a property is owned as tenants in common rather than joint tenants. Tenants in common is a different type of ownership to joint tenants and the rules of survivorship do not apply. If the surviving owner is the intended beneficiary a grant may not be required to have the deceased’s name removed and change the ownership to their sole name. However, a grant of probate must be obtained in order to transfer the ownership to benefices that are not named on the deeds as tenants in common. This is because the deceased owns a share of the property in their sole name rather than the owning the whole property jointly. For more information about the different types of property ownership read Joint Tenancy VS Tenants in Common when it comes to Probate.
If you are not sure how the property is registered, you can check with HM Land registry and purchasing the title documents for a small fee. If the property is not registered, you will need to refer to the property deeds.
A grant of probate may be required for any financial assets held in the deceased’s sole name however this is dependent on the institution where the assets are held and the value of what they are holding.
Every institution has a different threshold for what amount they will release without seeing a grant of probate. These thresholds vary dramatically, some being as low as £5,000 and others being as high as £50,000. It is worth noting that when the deceased left no will and the rules of intestacy are being applied, the thresholds are lowered most commonly to around £5,000. This is the case regardless of who is inheriting the estate. Each institution will inform the executor if a grant of probate is required to release the assets.
When a deceased’s financial assets were all held jointly with the surviving spouse, it should not be necessary to obtain a grant, but the institutions should still be informed so the ownership can be changed from joint names to the surviving spouses/civil partner’s sole name.
If probate is not required what administration is there to do?
Even though probate may not be required it is important that the executor inform any institutions where the deceased held accounts so that the necessary arrangements can be made to either transfer to the spouse or close them down. This could be pension providers, utility companies, mobile phone company (if they were on a contract), subscription services like Netflix, amazon etc.