Do I Need Probate If Any of These Situations Apply?

18 May 2017

Co-op Probate Solicitor Rachel Curtis answers 8 common questions about when Probate is needed or not needed. This information applies in England & Wales.

Click on the links above or see answers below.

Probate is the term often used to describe the generic process that is followed to administer a person’s Estate when they die. The process involves valuing the Estate, obtaining a Grant from the Probate Registry (if necessary), collecting in assets, paying debts and distributing the Estate according to the Will.

The person who administers the Estate is called a Personal Representative. There are two types of Personal Representatives: Executors and Administrators. They may have to apply to the Probate Registry for a Grant of Representation which, once issued, gives them the legal authority to administer a deceased person’s Estate. The most common types of Grants of Representation are a Grant of Probate and a Grant of Letters of Administration.

A Grant of Probate is issued to an Executor confirming their authority to complete the administration of an Estate. If there isn’t a Will, the Administrator must obtain a Grant of Letters of Administration to enable them to administer an Estate.

We can pay all the costs of a Co-op Funeralcare funeral when you use our Probate Complete Service, and the Estate has sufficient financial assets which can be sold in due course.

We review different situations below and explain if obtaining a Grant of Representation is necessary.

Do I Need Probate if there is a Will?

Whether or not an Executor needs to apply for a Grant of Probate does not depend on whether there is a Will. It is dependent on the deceased person’s financial situation.

If the deceased held assets with someone jointly as Joint Tenants, such as a bank account or property, then those assets will pass by survivorship to the surviving co-owner. The co-owner will need to produce the death certificate to formally transfer the asset into their sole name, but usually won’t need a Grant of Probate.

But if the deceased held assets in their sole name, it will be necessary to apply for a Grant of Probate. This may not be the case where the Estate is small and the individual assets are less than a certain amount, which can be as low as £5,000. However different financial institutions have different limits so it will be necessary to check with them individually.

If a Grant of Probate is not required then the relevant financial institution will advise what formal documentation they need to be completed to release funds, such as a copy of the death certificate with a completed Statutory Declaration or claim form.

Do I Need Probate if there is No Will?

As above, whether or not an Administrator requires a Grant of Letters of Administration depends on the extent of the deceased person’s financial Estate, rather than whether or not there is a Will. The process of applying for a Grant of Letters of Administration is largely the same as applying for a Grant of Probate.

Do I Need Probate or Letters of Administration?

If there is a Will then the Executor will need to ‘prove’ the Will and apply for the Grant of Probate. If there is no Will, then an Administrator will need to apply for Letters of Administration.

Do I Need Probate for Tenants in Common?

Generally a Grant of Representation is required to deal with joint property that as held as Tenants in Common.

Tenants in Common is a way of owning property between two or more people and differs to Joint Tenants. When there is a Joint Tenancy, the property commonly passes to the surviving co-owner. But where property is held as Tenants in Common, each co-owner owns a distinct share which will pass to the beneficiaries named in their Will, or according to the Rules of Intestacy.

Do I Need Probate if My Husband/Wife/Spouse Dies?

As above, whether a Grant of Representation is needed is dependent on the nature of the deceased spouse’s assets. Many couples set up their finances so that they own property and bank accounts as Joint Tenants, in which case a Grant would not be required. But any sole assets would need to be dealt with formally by a Grant of Representation. It is becoming more common for property to be held as Tenants in Common where couples have separate children or second marriages are involved.

Do I Need Probate to Sell a House?

If a house is held in a deceased person’s sole name then a Grant of Representation will be required. If a house is held in joint names and the surviving co-owner wishes to sell then it will depend on how the house is held – this will either be as Joint Tenants or as Tenants in Common. If held as Joint Tenants then the surviving co-owner can sell the house themselves with a copy of the deceased’s death certificate. However, if the surviving co-owner wishes to sell a house that is held as Tenants in Common then a Grant of Representation will be needed.

For more details see Probate Joint Tenancy v Tenants in Common Explained.

Do I Need Probate for a Small Estate?

Not necessarily. It depends on the size of the Estate and the value of individual assets. Different financial institutions have different limits for dealing with a deceased person’s Estate under their ‘small Estates procedure’. These limits vary from £5,000 to £30,000 and are often linked to the total size of an Estate. If the Estate is deemed to be ‘small’, a financial institution may still ask the Personal Representative to complete a Statutory Declaration to confirm he/she has the authority to administer the deceased person’s assets. For more information see Probate for Small Estates.

Do I Need Probate for Premium Bonds?

Premium Bonds are governed by National Savings and Investments (NS&I) who offer the option of the holding remaining in the prize draw for a period of up to 12 months after the deceased person’s death. The Personal Representative will need to complete a claim form to instruct National Savings and Investments to keep the bonds in the prize draw or encash them. If the holding is more than £5,000 a Grant of Representation will be required.

If your loved one has recently passed away and you are unsure whether or not Probate is required, our Probate Advisors can help you.

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