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Do I need Probate even if there is a Will?

View profile for Sophie Holmes
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Do I need Probate even if there is a Will?

It is a common misconception that Probate will not be required when a person has passed away leaving a valid Will.

In fact, the requirement for Probate depends on the type of assets in the estate, the value of these assets and the way in which they are held.

Obtaining a Grant is often referred to as getting ‘Probate’ and refers to the legal document issued by a specialist court confirming the authority of the Personal Representative to deal with the estate of somebody who has passed away.

If a person passes away leaving a valid Will, the Executors named in the Will may need to apply for a Grant of Probate. If a person passes away intestate i.e. without leaving a valid Will then the Personal Representative may need to apply for a Grant of Letters of Administration. Both documents are often informally referred to as Probate and the term will be used throughout this blog to refer to both document types.

Types of assets

If the legal title to land or property is held in a person’s sole name or as tenants in common, then a Grant of Probate will always be required before the asset can be sold or transferred.

Assets such as shareholdings will often also require Probate, unless the Registrar is provided with a sufficient indemnity by the Personal Representative(s) in the case of small estates.

The way in which they are held

If a person held assets jointly with another person, ownership of the asset will usually pass automatically via survivorship to the surviving owner regardless of whether the deceased made a Will. Examples of this includes property held as joint tenants and joint bank accounts. The surviving owner will then own the asset outright in his/her sole name.

If a property is held jointly with another person but as tenants in common then each individual is treated as owning separate and distinct shares in the property. On the death of an owner, Probate will be required to deal with the title which then property passes in accordance with their Will or the intestacy provisions, not to the surviving owner.

Value of assets

It is typically higher value assets which will necessitate Probate being obtained before they can be dealt with.

Individual banks each set their own threshold (usually between £5,000 and £50,000) meaning that they will insist on sight of a Grant of Probate before they will release funds to the Personal Representative.

Although obtaining Probate is not necessary in every estate, the Personal Representative is liable when dealing with the administration and distribution therefore it is prudent to seek specialist advice.

To discuss how we can assist you in dealing with the estate of a loved one, please contact us on 0161 696 6238 or complete our online enquiry form and a member of our estate administration team will contact you directly.

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