When we talk about the ‘probate’ of a Will, we mean the legal process of proving that a deceased person’s Will is valid. A Grant of Probate gives the person chosen as executor the authority to manage the estate.
So, when is probate needed? Is it necessary if there is a valid Will in place?
The short answer is yes, you may still need probate even if there is a valid Will.
A Will explains who should inherit the assets, but a Grant of Probate is the legal document that gives the executor the authority to access and transfer those assets.
In this mini-guide, we look at the circumstances in which probate is necessary and then run through the cases in which it is not needed.
When probate is needed
Probate is usually required if the person who died left behind:
Solely owned property
Even if there is a Will, probate is usually necessary if the deceased owned property in their sole name. It may also be required if the deceased had a beneficial interest in property held in trust or owned property with another person as tenants in common. If the deceased owned property with another person as a joint tenant, their interest will usually pass automatically to the surviving owner.
Large bank accounts
Bank accounts above certain thresholds may impose a limit on how much money can be released in the absence of probate. This could be up to a sum of around £50,000. If an estate left in such an account exceeds this limit, then a Grant of Probate would be required.
Investments and shares
Investments, shares and savings bonds will typically need to go through probate. In England and Wales, if the deceased owned investments, shares or savings bonds, the financial institutions holding them will usually freeze the accounts upon death and require a Grant of Probate before releasing or transferring those assets to the executors.
When probate is not needed
We’ll now move on to the circumstances in which a Grant of Probate is not required. Probate may not be needed if the estate meets specific conditions:
Jointly owned assets
If assets are owned as joint tenants, they will usually pass outside the probate process. A legal mechanism known as the right of survivorship applies when assets are held by co-owners in this way. The co-owners collectively own the entire asset rather than separate shares. When one owner dies, ownership automatically passes to the surviving owner without the need for probate.
The exception to this automatic transfer is when the asset is structured as a Tenancy in Common. This is an arrangement under which each individual owns a defined percentage share of the assets.
Small estates
If an estate is particularly small — for example, under £5,000 — probate may not be required. If only a modest amount of money and no complex property are left, the executors or next of kin may be able to access and distribute the funds by dealing directly with the relevant financial institution or institutions.
Trust assets
Money, property or investments held in trust will usually pass outside the probate process. This is because of a principle of property law: the separation of legal ownership and beneficial ownership.
When a person transfers assets into a trust, they transfer legal ownership of those assets to the trustees. Because the deceased no longer owned the assets at the time of death, the assets do not form part of their personal estate.
If you are making a personal Will, speak to the experienced team of Will-writing solicitors at Bennett Smith. They can assist and advise you throughout the probate process, helping to ensure that all necessary tasks are completed. Receive the benefit of a cost-effective, personal service that sets your mind at ease, and call us today on 01248 679 000.
