What Type of Assets are Subject to Probate?

06 June 2018

By Probate Solicitor, Mahua Jana

It’s a common misconception that all of the assets in the Estate will require a Grant of Probate in order to be sold or transferred. However, this is not always the case. Whether or not an Estate asset requires a Grant of Probate will often be determined by the type of asset it is, and how that asset was owned by the deceased during their lifetime.

Non Probate Assets

There are certain assets that do not require a Grant of Probate in order for them to be dealt with legally. These consist of the following:

1. Jointly Held Assets

These are assets that are held jointly by the deceased with one or more individuals. This is not limited to married couples. One example is a joint bank account. If a bank account is held in joint names then once one of the account holders dies, the bank or building society will transfer the account into the survivor’s sole name. They will usually request an original copy of the death certificate in order to do this.

Another common example is jointly held property. If the property is held as ‘Joint Tenants’ by two or more people, then upon the death of one of the owners, the property can be transferred into the name of the survivor/s without a Grant of Probate. This is not always the case with properties held jointly as ‘Tenants in Common’. For more information, see Tenants in Common – What Happens to a Property When You Die?

If you’re unsure if the property was jointly owned then it’s best to seek specialist legal advice as to whether or not a Grant of Probate is required.

2. Low Value Assets

If an asset has a low monetary value (usually £500 or less) it may be that a Grant of Probate is not required in order to deal with that asset.

In addition, many banks or building societies have set thresholds, which vary from bank to bank. A Grant of Probate may not be required for the bank to be willing to release the money held in an account if it falls below this threshold. In this instance, the bank may release the money to the person or people dealing with the Estate without asking for a Grant of Probate.

Even if there is only a relatively small amount of money in one account, it may be the Estate as a whole requires a Grant of Probate (because of other assets in the Estate). When this is the case the bank or building society may still ask to see the Grant of Probate before they will release the funds. 

3. Policies Where There is a Nomination

There are certain policy or pension pay-outs that do not technically form part of the deceased’s Estate. This is because that particular asset may be written into the Will under a Discretionary Trust and as such the Trustees can choose to whom to pay the money out to. For example an individual may specifically request that their child benefits from a specific Life Assurance policy. Therefore once the individual passes away the Trustees of that Life Assurance policy can choose to pay the lump sum to the deceased’s child directly, instead of paying it into the deceased’s Estate.

This is not a guarantee for all policies and pension plans and your Probate Solicitor will be able to advise you accordingly.

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*.

Assets Where Probate Is Required

More often than not, when an individual passes away, the Executor or Administrator of their Estate will be required to obtain a Grant of Probate. The Grant of Probate will give that person the legal authority to deal with any of the deceased’s assets that do require a Grant.

These will usually include:

1. Assets Held in the Deceased’s Sole Name

The most common example of this is the deceased’s property. If a property is held in the sole name of the deceased then a Grant of Probate will always be required in order to sell or transfer it. Other examples include bank accounts, building society accounts, shares and bonds (where the values are high enough to require a Grant of Probate).

2. Investment Products

This could be an investment portfolio consisting of different assets. In this situation, in order for the investment company to pay out to the Estate, they are likely to require a copy of the Grant of Probate.

3. Life Insurance Policies

If the deceased had a life insurance policy and had nominated someone to benefit from this after their death, then a Grant of Probate may not be required. However, if they had not nominated a person to benefit from the pay out, it is likely that the policy will the form part of the Estate and therefore will require a Grant of Probate.

4. Foreign Assets

A Grant of Probate will usually be required to deal with assets held outside of England or Wales. It is important to take specialist legal advice both here and also in the country where the asset is held. This is because there are likely to be strict legal requirements in order to deal with the asset and any tax liabilities in both countries.

5. Business Assets

If the deceased held any business interests (if they were a director of a family business, for example) then it is very likely that a Grant of Probate will be required in order to deal with their interest.

The above are the majority of scenarios where a Grant of Probate will be required, but this list is not exhaustive. Where there is a Will, it is always best for the person named as an Executor to obtain a Grant of Probate in order to gain the appropriate authority to deal with the deceased’s Estate. Your Probate Solicitor will be able to help you to obtain the Grant of Probate in order for the Estate to be appropriately and legally administered.

*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.

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