When is Probate Needed?
Probate is likely to be needed in England and Wales where the deceased owned a property in their sole name. It may also be needed if the deceased held a substantial amount of money with a bank or building society.
Probate in England and Wales
When someone dies in England or Wales, it may be necessary to go through a process called Probate. This is when the Executor named in the deceased’s Will (or the next of kin if there is no Will) makes an application to the Probate Registry. If the application is approved, the Probate Registry issues a document called a Grant of Representation. There are actually different types of Grants of Representation, including a Grant of Probate and a Grant of Letters of Administration. For the purposes of this article, we will refer to them collectively as a ‘Grant’.
Once a Grant is issued, the person who applied for the Grant has the legal authority to access the deceased’s assets. This means they can do things like get their money from the bank, sell their property and pay off their creditors. The remaining assets can then be distributed to the beneficiaries.
When is Probate needed in England and Wales?
If your loved one has recently died, you might now be asking yourself: when is Probate needed? It is a fair question, and one that we get asked a lot. Many people have never even heard of Probate until a close relative passes away. The funeral home may have given you a leaflet. Or, the deceased’s bank or other financial institution may have refused to deal with you until a Grant is issued.
We appreciate that this is a confusing situation to be in. Dealing with a deceased person’s affairs isn’t something that happens on a regular basis. If you don’t know where to turn next, you can always contact our Sunderland solicitors for advice. We represent clients across the country and can explain whether Probate is needed in your loved one’s estate.
Probate is needed when…
If you’re trying to get a better idea of when Probate is and is not needed, then let us explain. It all depends on:
- The value of the deceased’s assets; and
- How these assets were held (be it in their sole name, as tenants in common or jointly).
The value of the deceased’s assets
If the deceased didn’t own very much, he or she has a ‘small estate’. The banks and financial institutions holding what little money the deceased had will probably release the funds without asking to see a Grant first. It is hard to say exactly what constitutes a small estate. This is because all banks and financial institutions have their own rules. If the deceased owned less than £5,000, then it is safe to say that Probate isn’t needed. However, lots of banks these days set the threshold at £15,000 plus, which makes life easier for you.
Because of the variation in rules, you have to check with every bank and financial institution holding your deceased relative’s funds. If each bank or financial institution does not require a Grant, then you do not have to go through Probate. But if even one bank says that a Grant is needed, then you’ll have to make an application to the Probate Registry.
So does that mean that if the deceased had a lot of savings, or owned valuable assets, then Probate is definitely required? Not necessarily.
How were assets held?
Now we come to our second point: how the assets were held. In England and Wales, there is a law called the Rule of Survivorship. This stipulates that where assets are jointly owned, they will automatically pass to the survivor on the death of the first owner. For example, if a married couple own a house together as joint tenants and the husband dies, the wife automatically inherits his share of the property. This happens without a Grant.
Therefore, if your relative owned all their assets jointly – and that joint owner is still alive – then Probate isn’t necessary. You’ll need to check through all the assets and check whether or not this is the case. Sometimes we find situations where a property is owned in someone’s sole name, even though the surviving spouse assumed it was held in their joint names.
In summary, Probate is needed if the deceased:
- Owned assets over a certain value; and
- These assets were held in their sole name, or as tenants in common
This means that Probate will be required if your relative owned a property in their sole name or as tenants in common. It may also be required if your relative owned other valuable assets in their sole name. This includes money in the bank.
Speak to our Probate solicitors
If you’re not sure whether Probate is needed following your loved one’s death, please call us on 0191 567 7244 and we’ll be happy to help you. If you would rather contact us online, email us at firstname.lastname@example.org and one of our team will be in contact with you shortly.