Is Probate Needed when a Spouse Dies?
30 April 2019
By Probate Solicitor, Kim Hammond
Some assets can be passed to a surviving spouse without the need for Probate, but this will depend on what the asset is and how it was owned. This means that Probate may sometimes be required even if everything the deceased owned is being left to a surviving spouse.
What Happens to Assets when a Spouse Dies?
When a spouse passes away, many people believe that everything they owned will pass to the surviving spouse automatically, without the need for the law to become involved. There is a common belief that because their finances were merged during their lifetime, the same will apply after death.
This can sometimes be the case but it will depend on the type of assets held and the way these are owned. Often a Grant of Probate will be needed before certain assets can be paid or transferred, regardless of whether these assets are being inherited by the husband or wife of the deceased.
A lot of married couples own assets jointly. This might include a joint bank account from which bills and household expenses are paid, for example, or a couple may own their house together as joint tenants.
Where an asset is held in this way, the couple owns all of it together, with neither owning a divisible share. These assets are subject to the 'Right of Survivorship' meaning that on the death of one owner, the asset automatically remains in the sole ownership of the surviving joint owner, with no requirement for a Grant of Probate to achieve this.
It will be necessary for the deceased person's name to be removed from the bank account or title deeds but this is a very straightforward process, just requiring the production of a death certificate. Any assets held jointly in this way cannot be gifted under a Will and do not form part of a deceased person's Estate; they will always pass to the surviving joint owner. However, it's important to remember that they will be taken into account when calculating the value of their Estate for inheritance tax purposes.
Tenants in Common
The process is different, however, where a property is owned jointly as tenants in common. This means each joint owner holds a defined share, which is usually 50% but can be any percentage depending on the circumstances surrounding the property purchase or acquisition.
Unlike a property held as joint tenants, a share in a property held as tenants in common does form part of the deceased's Estate and can be gifted under their Will. Where property is held in this way, there is usually an entry on the title register called a Restriction, which protects the interests of each joint owner.
A Grant of Probate shows who legally represents the Estate. This might be requested if, for example, the property is sold and the deceased's share of the sale proceeds are to be paid into the Estate.
If the deceased's share of the property has been gifted in their Will to someone other than their co-owning spouse, such as children; and the property is not to be sold; the property can be transferred into the names of the spouse and the children together, which doesn't always need a Grant of Probate. Similarly, if the deceased's share of the property has been left to the surviving co-owning spouse, it is possible to remove the Restriction from the title, leaving the spouse as the absolute sole owner.
For more information on joint property ownership, see Joint Tenants & Tenants in Common.
Assets Owned in the Deceased's Sole Name
Finally, if there are assets owned in the sole name of the deceased, these may require a Grant of Probate, depending on what they are and how much they are worth. Some assets will always require Probate in order to be sold or transferred, such as some types of shares or investments, or property held in the sole name of a deceased person, whereas others may be dependent on value.
Each bank and building society has its own financial limit above which they will require a Grant of Probate before releasing the deceased's funds. This can range between £5,000 for some banks up to £50,000 for others.
Therefore, whether or not Probate is required following the death of a spouse will depend on what they owned and how it was owned. If you have any uncertainty as to whether Probate is required on an Estate, it's important to seek advice from a Probate specialist. At Co-op Legal Services, our Probate Advisors can provide you with free initial advice.