When is Probate Required?

If you are about to deal with the estate of a loved one, you might be wondering if you need to apply for Probate. This is a legal requirement for some estates, but not all. Before you doing anything, you will need to check whether the estate meets the requirements for a Grant of Probate.

Read our tips on how you can see whether you need to apply for Probate, and what steps you should take next.

2) 30 Second Summary

  • A Grant of Probate is a legal document that gives you the authority to handle a deceased person’s affairs and wind up their estate.
  • Probate is not always necessary, and for some estates you are able to do this without having to apply for a Grant.
  • Whether you need it or not will depend on the size of the estate, whether they owned property, and whether the bank requires it from you.
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2) Reasons Why Probate is Required

A Grant of Probate is a document which gives you the legal authority to handle a person’s financial affairs after they have died. If this person has died without a Will, it is called Letters of Administration. You must apply for this before handling any matters relating to the estate.

Not all estates need a Grant of Probate. It will depend on a number of factors relating to the estate.

 

  • When the deceased owned any kind of property, land or shares.
  • When the deceased was the sole owner of property or assets. Any jointly-owned property will immediately pass to the surviving owner, who then has sole ownership.
  • When the deceased owned property where they were Tenants in Common. Their half of the property is included in what is to be distributed in the Will. As it is an asset of high value, Probate will most likely be necessary.
  • The valuation of the deceased’s estate is high. This is why a valuation must be undertaken before applying for Probate. All the deceased’s property, possessions and assets must be taken into account. This could be affected by things such as lump-sum pension or insurance payment.
  • The deceased’s cash in the bank exceeds the threshold. This depends on the bank, but is usually between £5,000-10,000.
  • When there is a legal dispute or legal proceedings in connection with the estate. If someone contests the Will or otherwise has a claim to the estate, this greatly complicates the situation and your role as Executor estate. As the validity of the Will or the bequests therein are potentially being challenged, winding up the deceased’s affairs and distributing the estate is no longer a simple matter. It will probably be necessary for you to apply for Probate.

3) Where Probate is Not Necessary

  • When the deceased’s property or assets were jointly owned. As stated above, in this case Probate would not be needed because it would immediately pass to the surviving owner.
  • When the deceased owns no property. For example, if they were living in rented accommodation and did not otherwise own anything.
  • When the deceased’s estate is very small. If the sum total valuation of their estate and the sum of money in the bank is very small, it is very likely you won’t need Probate.
  • If the deceased was bankrupt at the time of death or the estate is found to be insolvent. Part of the duties of being the Executor of the estate includes paying off any debts, loans, or outstanding bills, as well as paying for the funeral and any other expenses incurred. If the estate is insolvent, or effectively out of money, there is no need for Probate.

4) What You Need to Do Next

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  • Seek legal advice. Whether or not Probate is required, handling a person’s affairs can be a big responsibility. It can be complicated and time-consuming work. Even a straight-forward estate can run into issues and delays. For most people this will be the first time they have ever dealt with anything like this. So before proceeding, it’s wise to seek legal advice from a solicitor who specialises in this area.
  • Instruct a solicitor if necessary. If the work involved seems out of your remit, you might choose to instruct a solicitor to handle Probate for you. Even if the estate does not require Probate, you might not have the time or ability to deal with this yourself. If there are complications, such as a dispute over the Will or some part of the estate, it may become necessary to get professional help involved.
  • Get the estate valued. In many cases this is a factor on whether you need to apply for Probate or not. You will need to get a valuation of all the deceased’s assets – all property, possessions, money, stocks and shares, etc.
  • Find out if any assets are jointly-owned.
  • Contact the deceased’s bank. Every bank has their own policy regarding Probate. Although the amount of money held in the bank might be relatively small, they could still require a Grant of Probate from you before releasing the funds. Check before proceeding as this might be the case for you.

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