Is Probate Required if there is a Surviving Spouse?

04 June 2018

Whether or not Probate will be required will depend on what assets are in the Estate and how these are owned. If assets were owned in the deceased person’s sole name, then Probate may be required even if these are being left to their spouse. If assets are held jointly, then depending on the type of joint ownership, it may be possible to transfer them into the survivor’s sole name without going through Probate.

What is Probate?

The term Probate refers to the legal process of dealing with someone’s property, money, debts and assets after they die (known as their Estate). This process involves obtaining a Grant of Representation from the Court, which provides the named person with legal authority to deal with the deceased’s Estate.

The Grant of Representation can come in one of two forms. If the deceased person left a Will, then a Grant of Probate will be needed. If there was no Will then it will be a Grant of Letters of Administration.

Whether Probate will be required upon the death of the first spouse will depend on how the couple’s assets are held. These could be held in one person’s sole name, or they could be held jointly.

A property can be jointly owned as Joint Tenants or Tenants in Common:

Joint Tenants

Most married couples will own property as Joint Tenants, which means that both parties own the whole of the property, with neither owning a specific share.

Any property held as Joint Tenants will pass automatically to the surviving owner under the Right of Survivorship. A Grant of Probate will therefore not usually be required and the assets will be transferred into the sole name of the surviving owner upon production of the death certificate.

The same is true for any other assets held jointly, including bank accounts. Again, the bank may ask to see the original death certificate before transferring the account into the survivor’s sole name, but usually a Grant of Probate will not be required for this.

Tenants in Common

Jointly held property can also be held as Tenants in Common. This means that the joint owners each own a specific share of the property, which could be half each or a defined percentage.

Property may be held as Tenants in Common for a number of reasons. For example, if a couple made uneven contributions to the property purchase then they may choose this option in order to reflect their shares more accurately. Similarly, owning a property as Tenants in Common may allow for specific family circumstances, such as previous marriages or children from past relationships.

The key difference between Joint Tenants and Tenants in Common for Probate purposes is that when one of the joint owners dies, their share will not pass automatically under the Right of Survivorship. Alternatively, the property will pass in accordance to the Will or according to the Rules of Intestacy if there was no Will in place. Probate will therefore usually be required to deal with property held as Tenants in Common.

Identifying How Property is Held

If you are unsure how a property is held, you can obtain a Title document for the property from the Land Registry for a small fee. This is only available if the property is registered with the Land Registry in England and Wales.

The Title document will detail if the property is held as Joint Tenants or Tenants in Common. If the property is not registered with the Land Registry, you will need to refer to the property deeds to determine ownership.

Sole Assets

If assets are held in the deceased’s sole name, then these will need to be dealt with either in line with the terms of the Will, or if there was no Will then in line with the Rules of Intestacy.

If the deceased held assets in their sole name as well as jointly owned assets, a Grant of Probate may still be required regardless of the ownership of the joint assets. This will be dependent on how much the sole asset is worth.

If the asset is money that’s held in a bank account, then it’s worth noting that different financial institutions set their own individual limits for requiring a Grant of Probate. The limits can range from £5,000 to £50,000, however most institutions will not require Probate to release funds if the value is below £15,000.

With our Probate Complete Service we take full responsibility for getting Grant of Probate and dealing with the Legal, Tax (excluding 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 repay 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.

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