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My Husband Has Just Died, Do I Need Probate?

23rd January 2017

To find out if Probate is needed call our Probate Advisors on 03306069584 or contact us online and we will tell you.

By Probate Solicitor Rachel Curtis

When a spouse dies in England or Wales there are many financial considerations and decisions to make. One issue is whether Probate is needed. Whether you do need a Grant of Probate will depend on your spouse’s particular financial circumstances and situation.

What is Probate?

The term Probate is often used in general terms to describe the process of sorting out a person’s affairs when they die.

If your spouse left a Will, the person named as Executor will usually deal with the Estate Administration which involves gathering in their assets, paying any tax and outstanding liabilities, and distributing the Estate in accordance with the Will.

A Grant of Probate is the legal document which confirms that the Executor has authority to deal with the deceased person’s Estate.

If there is no Will, an Administrator is appointed to deal with the Estate and a Grant of Letters of Administration is issued to confirm their authority to do so. The Estate is distributed according to a set of rules called the Rules of Intestacy. Who benefits under the Intestacy Rules depends on the size of the Estate and which relatives are surviving.

Executors and Administrators are collectively known as Personal Representatives or PRs, and Grants of Probate and Grants of Letters of Administration are collectively known as Grants of Representations.

Do I Need a Grant of Representation?

It does not matter whether there is a Will or not, it depends on how assets are held as to whether a Grant of Representation is needed.

Jointly held assets, such as bank accounts or property, usually pass to the surviving spouse or owner automatically under the Right of Survivorship. A Grant of Representation will not be needed and the production of a death certificate is often all that is required to transfer any such assets to you as the surviving owner.

Alternatively, property may be held jointly as Tenants in Common. This is where an individual holds a more distinct share that will not pass by survivorship and will pass in accordance with the deceased’s Will or according to the Intestacy Rules. A Grant of Representation will be needed to deal with any assets held jointly as Tenants in Common. It is common for property to be held as Tenants in Common where couples have separate children or second marriages are involved.

Any assets held in your spouse’s sole name will need a Grant of Representation. However, if the Estate is small and no particular asset exceeds £5,000 then it may not be necessary to obtain a Grant of Representation. Instead banks and other financial institutions will usually pay the proceeds of the asset to the PR or beneficiary after completion of a form stating they are entitled to funds. Some institutions have a higher limit for requiring a Grant of Representation that can range between £5,000 and £30,000 so it is worth contacting them to check.

If your spouse had a life insurance policy then the company may pay the proceeds to the named Beneficiary on the production of the death certificate without a Grant of Representation. It is worth contacting them early on to clarify this as the policy proceeds can be an important source of funds to meet immediate financial needs.

If your spouse was a Beneficiary under a Trust then generally those assets will not be governed by the Will or Rules of Intestacy but will pass according to the terms of the particular Trust. You will need to check the terms of the original Trust document to see what happens to the Trust assets.

The Probate process can be daunting and overwhelming, especially when you are grieving or if you have not handled financial issues before. Our Probate Complete Service means that you pass all the legal and administrative work to our Probate Solicitors and specialists. We act on your behalf on a fixed fee basis, rather than charging a percentage of the total value of the Estate.

For free initial advice and guidance call our Probate Advisors on 03306069584 or contact us online and we will call you.

Call  03306069584

Very good value for money. C.C., Worcestershire
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I liked how much easier you made it for me during the passing of my father. B.M., East Midlands
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