Is Probate Required if There is a Will?
23 October 2019
The presence or absence of a legal Will has no bearing on whether or not Probate is required. This information applies in England and Wales.
If an Estate is valued above the Probate threshold, and the assets (everything he/she owned) were held in the deceased’s sole name, then Probate will be needed, regardless of whether he/she left a valid Will. In this article, we explain when Probate will or won't be needed after someone dies.
People often tell us that Probate is not needed on their loved one’s Estate because he/she left a Will. But actually this makes no difference. Probate may or may not be needed on Estates where there is a Will, and Probate may or may not be needed on Estates where there is no Will.
The term 'Probate' refers to a legal document which grants a named person legal authority to wind up the affairs of a deceased person. This document is called a Grant of Probate if there is a Will, and a Grant of Letters of Administration if there isn't. Both of these documents work in largely the same way. When people refer to whether or not Probate is needed, this is generally what they are referring to. For the rest of this article, we will refer to 'Probate' in this way.
Whether Probate is required or not depends entirely on:
- How assets were held, which will either be in joint names, or in the deceased person’s sole name
- The value of these assets.
How Assets Were Owned By the Deceased
A good place to start when establishing whether Probate is needed is to make a detailed list of all the assets the deceased owned. You then need to find out if these assets were held in the deceased's sole name, or in joint names with someone else.
Assets that are owned jointly can be held one of two ways: as joint tenants or tenants in common.
If any assets are held in joint names as Joint Tenants with someone who is still alive, the asset will automatically pass to the co-owner under the Right of Survivorship. If this applies to all the deceased’s assets, Probate will not be required for these assets.
Assets held as tenants in common will not pass by survivorship. Instead, these will pass to whoever is entitled to inherit under the deceased's Will or the Rules of Intestacy. Probate may be required for these assets, depending on their value and who is inheriting them.
If any assets are held in the deceased person's sole name, the value of this asset will need to be determined. If this value is over the Probate threshold (explained below) then Probate will be needed to sell or transfer it.
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The Value of the Assets
Even if the deceased person owned an asset in their sole name, Probate may not be needed if it has a low value. That’s because most banks and financial institutions will release funds if the deceased held or owned less than £5,000. However, each bank has its own minimum Probate threshold and it’s worth checking the position with them. For more information, see Bank Limits for Probate.
If the deceased's assets all fall under the Probate threshold, this is called having a small Estate and it's likely that Probate won't be needed. It’s hard to put an exact figure on what constitutes a small Estate, as every bank and financial institution has their own limit. But generally if the total value of the Estate is less than £15,000 then usually Probate will not be required.
But if the deceased owned assets worth more than the threshold, you’ll need to go through the Probate process. So, for example, if the person who died owned a property in his/her sole name, you can be certain that Probate will be needed.
If There is a Valid Will
Whether or not there's a legally valid Will has no bearing on whether Probate is required. Probate is not required exclusively on Estates where the person died Intestate (meaning without a Will). In fact, Probate is required on a lot of Estates where there is a Will.
However, you do need find out if there's a Will, as this will influence certain things. For example, if there's a Will it will name Executors. These are the people who can apply for a Grant of Probate, and they will be responsible for distributing the Estate to the Beneficiaries named in the Will. If they choose not to take the appointment as Executor, then there is a priority order of who can apply instead. If you're not sure who is entitled to apply, contact our Probate Advisors for free initial advice.
If there isn't a Will, the law in England and Wales will determine who the Beneficiaries are, based on the Rules of Intestacy. These rules will also determine who is legally entitled to administer the Estate.
If your loved one has passed away and you’re struggling to understand whether or not Probate is needed, our award winning Probate team can help you.