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When is probate required?

Our People - Andrew Guile
21 October, 2022

Probate is generally required for estate administration and is usually needed if a person has significant assets or owns a property in their sole name. However, the threshold for money can vary between individual banks and financial institutions. Therefore, taking specialist legal advice on probate can be helpful in most cases, and essential in others.

When do you need probate?

You need to apply for probate to give you the authority to collect in and distribute a person’s estate to their beneficiaries. A ‘grant of probate’ is a court order made by the Probate Registry. It gives an executor of a will or administrator of the estate the authority to collect in the deceased person’s money and assets to distribute them to the beneficiaries, as set out in the will.

Alternatively, if the deceased died without a will, ‘Letters of Administration’ may be required instead of a Grant of Probate, according to the rules of intestacy.

Probate will normally be needed where:

  • the amount of money held in banks, etc is over their probate threshold. This is commonly between £5,000 and £50,000.
  • the deceased had stocks or shares in their sole name.
  • the deceased owned property or assets in their sole name and these need to pass to the beneficiaries.
  • any part of estate administration is disputed, and there are legal proceedings.

When is probate not required?

Probate may not be needed, if the deceased’s assets are owned jointly, for example with their spouse. If a bank account is owned jointly then the bank needs to be informed that one of the joint owners has died so that they can remove their name from the accounts. If a property is held jointly, you need to inform the Land Registry of the death of the joint owner by completing a form DJP, so that their name can be removed from the title deeds.

Probate: Joint Tenants vs Tenants in Common

Many assets can be held either as joint tenants or tenants in common.

Joint tenants are seen as jointly owning the whole asset, for example both owning 100% of a house. In contrast, tenants in common each own a share, for example a couple owning a house where each have a 50% share.

As a result, when a joint tenant dies, the property automatically belongs to the surviving joint tenant and does not form part of the estate of the deceased joint tenant. The same goes for jointly held bank accounts.

However, where the property is held as tenants in common, the deceased’s 50% share forms part of their estate and will be included in their estate that passes via their will (or via ain intestacy if there is no will).

What is the probate threshold in the UK?

The threshold in England and Wales can be anywhere between £5,000 and £50,000 and often varies depending on the individual bank or financial institution’s policy. Therefore, another scenario in which probate may not be needed is if the deceased had money in bank accounts below the threshold for which the bank requires a Grant of Probate.

Do you need probate if there is a will?

Yes, you may well need probate even if there is a will. Being named as an executor in a will gives you the authority to ‘prove’ the will and to take steps to give effect to the wishes of the deceased as set out in the will. So, although not all wills go through the full probate process, a ‘grant of probate’ is still needed where the deceased left significant money and/or property.

Whether probate is needed or not, we can assist you with the probate process, for instance distributing a deceased’s estate and informing the relevant organisations of their death. If you would like any help or advice on any issues relating to probate, please do not hesitate to contact a member of our Probate Team or get in touch on 020 8492 2290.

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