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Do I need Probate?

For those entrusted with what can often be a daunting task of administering the estate of a deceased loved one, there can be many hurdles to overcome. A common query from individuals in this position, is whether or not they need probate.

What is probate?

Probate is the process of administering the estate of a deceased person.

When is probate required?

In determining whether probate is necessary, there are two factors to consider;

Firstly, did the deceased have assets in joint names – Any assets (including property) held jointly do not require probate, regardless of the value, as they will pass automatically to the survivor.

Secondly, the value of the deceased person’s assets – Accounts held in the deceased’s sole name may require probate depending on their value. Each bank and financial institution have their own threshold and may instruct that probate is required before they release funds. You will need to confirm with the individual institution(s) as to what their threshold is.

Should probate be required you will then need to apply for a Grant of Representation. This is a legal document which gives authority to the executor(s) or administrator to deal with the deceased person’s assets in accordance with their will or under intestacy rules.

The two most common types of Grant of Representation are;

  1. A Grant of Probate when a person leaves a will and,
  2. A Grant of Letters of Administration where there is no will.

Is probate needed to sell a property?

Property held in the sole name of the deceased will require probate to either sell or transfer it into the name(s) of someone else. However, a grant will not be required for properties held in jointly as this will pass automatically to the surviving joint owner, as mentioned above.

Property held as ‘tenants in common’ does not automatically pass by survivorship. Instead, each proprietor will own a defined share of the property and you may require probate. The deceased’s share will pass to whoever is entitled to inherit under their will or intestacy rules.

What happens if you don’t apply for probate?

If probate is required and you have not applied, this can cause immediate issues such as the assets of the deceased not being accessible or transferred to those entitled to inherit.

A common scenario is a surviving spouse who continues to live in the family home. Believing that probate was not required after the death of a spouse, they assume everything is left to them. On the death of the surviving spouse, it is discovered that the family home was in fact held in the sole name of the spouse who died first. Here, a grant of probate is now required for both estates in order to sell or transfer the property, resulting in delays and additional legal fees.

As the executor or administrator, it is important that you ascertain all relevant information regarding the deceased’s assets and how they are held. This will avoid potential problems in the future.

The risk of applying for probate yourself:

Although individuals can apply for probate themselves, it is important that you are aware of potential risks involved. As an executor or administrator, you could be personally liable for debts that have not be paid. This can occur through missing important steps such as notifying creditors.

Errors incurred by the executors or administrators could be very expensive. Claims can also be made by beneficiaries for loss to the estate due to failure to carry out relevant steps during the administration process.

I am often contacted by relatives seeking to administer the estate of a deceased loved one where there is no will.  In such situations the rules of intestacy must followed. However, this can be a complicated area as there is an order of priority as to who is entitled to apply for the grant.   

I recently worked with a family member, who mistakenly assumed that due to their close relationship with the deceased that they would be entitled to administer the estate. From the information provided I was able to locate the family member who was entitled to apply for the grant. This meant that the property of the deceased could be sold, and their debts settled.

In this scenario had the family member not sought legal advice and attempted to apply for a grant themselves their application would have been rejected causing delay of the property being sold and incurring additional cost to the estate.

To avoid this and other such issues, it is advisable that you instruct a solicitor. This is especially important if the estate is taxable or likely to be disputed. Instructing a solicitor will provide certainty and peace of mind that the estate has been administered accurately and efficiently.

If you are still unsure if probate is required or need advice based on your particular circumstances our solicitors at Brethertons can provide you with expert guidance and support through the process.

Important changes to the probate process:

For deaths on or after 1 January 2022 with an excepted estate (no IHT is payable), you are no longer required to submit an IHT205 form and if applicable, an IHT217 form to HM Courts and Tribunals Service (HMCTS) as part of the probate application.

On 26 January 2022 the fee charged by the Probate Registry was increased by a fixed flat fee of £273 for both solicitors and individuals applying regardless of the size of the estate. Estates valued at £5,000 or less will continue to be exempt from probate fee.

For more information about administering an estate please visit https://www.brethertons.co.uk/site/individuals/wills-trust-probate-solicitors/administering-an-estate/

If you would like advice from one of our Private Client Solicitors, please email nakitasmith@brethertons.co.uk or phone 01295 270999 (Banbury Office) 01869 252161 (Bicester Office) and 01788579579 (Rugby Office).