My Husband Has Just Died, Do I Need Probate?
20 February 2020
Whether you need a grant of probate will depend on your spouse’s particular financial circumstances and situation. to deal with your spouse's affairs will depend on the situation and your spouse's particular financial circumstances. In this article, I explain how to determine whether Probate will be needed.
With our Probate Complete Service we take full responsibility for getting grant of probate and dealing with the Legal, tax (excl VAT), property and estate administration affairs*.
*We can also pay all the costs of a Co-op Funeralcare funeral, providing the estate owns sufficient assets which can be sold in due course to cover our costs.
Co-op Legal Services is the largest provider of probate and estate administration services in England and Wales, and trusted to deal with over £1.3 billion in estates annually.
What is probate?
When someone dies there are a number of practical matters that will need to be taken care of. One of these matters is establishing whether or not Probate will be needed to deal with your loved one's affairs.
The term 'Probate' is often used in general terms to describe the process of sorting out a person’s affairs when they die. This term refers to a legal document, called a Grant of Representation (commonly referred to as a Grant of Probate) which confirms that the person named in the Grant has legal authority to deal with a deceased person's Estate.
If your spouse left a Will, the person named as Executor will usually deal with the Estate. The role of the Executor involves gathering in the Estate assets, paying any tax and outstanding liabilities, and distributing the Estate in accordance with the Will.
The Grant of Probate confirms that the Executor has authority to carry out this work.
If there is no Will, an Administrator is appointed to carry out this work instead. Instead of a Grant of Probate, a document called a Grant of Letters of Administration is issued to confirm the Administrator's authority to do so. The Estate is distributed according to a set of rules called the Rules of Intestacy. Who benefits under the Rules of Intestacy will depend on the size of the Estate and which relatives have survived the deceased relatives.
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 Representation.
Probate isn't always needed to deal with an Estate because some assets can be dealt with without the need for a Grant of Representation.
Do I Need a Grant of Representation?
Regardless of whether there is a Will or not, the need for Probate will depend on what assets there are in the Estate and how these assets are held.
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 for this and the production of a death certificate is often all that is required to transfer joint assets to you as the surviving owner.
Alternatively, property can be held jointly as Tenants in Common instead of Joint Tenants, and this works very differently. When property is owned as Tenants in Common, each individual holds a defined share. This share will not pass by the Right of Survivorship, but instead will pass in accordance with the deceased's Will or according to the Rules of Intestacy.
A Grant of Representation will be needed to deal with any property 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 significant assets held in your spouse's sole name are likely to need a Grant of Representation. However, if the Estate is small, particularly if none of the assets exceed £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 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 £50,000 so it is worth contacting them to check.
For more information, see Bank Limits for Probate.
If your spouse had a life insurance policy then the company may pay the proceeds to a nominated 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.
Get Help with Probate
The Probate process can be daunting and overwhelming, especially when you are grieving or if you have not handled complex 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. This could save you thousands of pounds.