If you are appointed in a Will as an ‘executor’, you may find that you have to apply for a Grant of Probate before you are able to deal with their assets. If family member has passed away without leaving a Will, it may be up to you to obtain a Grant of Letters of Administration before the estate can be dealt with.
Obtaining a grant is often named getting ‘probate’ and refers to the legal document issued by the courts confirming the authority of the personal representative to deal with the estate of somebody who has passed away.
Whether or not a grant will be required will depend on what assets are held within the estate:
- Property - solely owned property or land will always require a grant before it can be sold or transferred
- Money in bank accounts - will depend on the financial institution as each set their own limit (often between £5,000 and £50,000) meaning that they will insist on a grant for any balances over and above this limit
- Investments and/or shares - it is likely that the asset provider will require a grant unless provided with an indemnity by the personal representative in the case of ‘small estates’
- Life insurance policies written in trust - often pass outside of the estate and therefore will not require a grant
- Factors such as foreign assets and business interests are often complicating factors when dealing with an estate and may necessitate a grant being obtained
Jointly held assets
If the deceased held assets jointly with another person, ownership will pass automatically via survivorship to the survivor regardless of whether the deceased made a Will leaving his or her estate to a different person. A grant will not be required to deal with the legal title and the survivor will own the asset outright i.e. in his or her sole name.
Care must be taken when dealing with property that is jointly held, but as tenants in common instead of as joint tenants. Where two or more people own a property as tenants in common, each individual owns a distinct and separate share in the property. On the death of a tenant, their share in the property passes in accordance with their Will, or the rules of intestacy if no Will was made. A grant must be obtained before the deceased’s share in the property can be sold or transferred.
Although it may not always be necessary to obtain a grant, the personal representative is liable when dealing with the administration and distribution therefore it is prudent to seek specialist advice.
Dealing with intestate estate, for example, is inherently more complex as there is no Will to confirm who the beneficiaries are and who should benefit from the estate will therefore be determined by the rules of intestacy.