When Is Probate Required?

In your life, you will lose someone you love. You might also have to be their personal representative. This means you may need to deal with the probate and estate administration process.

During this traumatic time, it can be very daunting not knowing what to do or what happens to a person’s possessions and property. Many people do not understand probate or estate administration until they have to manage a loved one’s estate.

Probate is ultimately about managing who gets what from a person’s estate. When someone passes away, their possessions, money and property are known as their estate. Someone needs to sort out who gets what from this estate.

This person is referred to as the ‘Personal Representative’ or ‘Executor’ of the estate and is usually arranged in a persons Will. What happens to this estate and the process that is undertaken is collectively known as probate.

What is probate?

Probate is ultimately about managing who gets what from a person’s estate. When someone passes away, we refer to their possessions, money, and property as their estate. Someone needs to sort out who gets what from this estate.

Probate forms part of the estate administration process. It is the first step in the process. A personal representative applies for permission to manage a deceased person’s estate.

The personal representative will either be an Executor or Administrator. They will decide this based on whether someone left a Will. 

When is probate required?

Most aspects of the estate administration process require probate to happen. The size of the estate will decide if probate is needed. It’s normally necessary in the following circumstances:

– The deceased owned property and/or land.

 – The deceased owned stocks or shares in their sole name.

– The deceased had money in their sole name.

– Any part of the estate administration is disputed through legal proceedings.

If the person who has died had an estate worth over £5,000, they will likely need to obtain probate.

If you are still unsure, our expert probate solicitors can help you decide if you need probate. 

When is probate not required?

There are a few occasions where the process of probate may not be required, including:

– The deceased only owned property or bank accounts jointly with another person.

– If the deceased was insolvent and had more debt, tax and other expenses than assets.

– If the person who died owned property or bank accounts with a living spouse, the ownership will pass to the spouse. We call this the right of survivorship, so you may not need probate.

Do I need probate if there is a Will?

A Will does not impact whether probate is needed. The probate process is similar whether there is a Will or not. It mainly depends on the financial situation of the deceased. It also considers the types of assets they own and how they own them.

If the Will clearly names an Executor of the Estate, the Executor may need to apply for a Grant of Probate. A grant of probate gives official authority for the Executor administer the estate. Learn more on What is an Executor of a Will.

If someone dies without a Will, they are said to die intestate. In this case, an administrator may need to apply for a Grant of Letters of Administration. This will give an Administrator the authority to administer the estate. Learn more on What Happens if There is no Will.

How does probate work when there is not a Will?

Nearly half of Britons over 55 do not have a Will, so this is not uncommon. If no valid Will has been left, the law determines who can make a probate application. The rules say that the next of kin can apply for a Grant of Letters of Administration. However, determining who the law considers the next of kin can be complicated.

Probate can be more complex due to intestacy laws. These laws decide how a person’s estate is shared. Unmarried or divorced partners normally don’t inherit anything under intestacy rules.

The rules of intestacy follow an order of priority of who should benefit from the estate. This order is as follows:

– Spouse or civil partner

– Children/grandchildren

– Parents

– Siblings

– Grandparents

– Uncles and aunts

Do I need probate for a small estate?

It depends on the size of the estate and the value of individual assets. If the estate is small, has no property, and contains less than £5,000 in the bank, you probably won’t need probate. This is because some assets and small amounts of money can be dealt with without probate.

Do I need probate to sell a house?

If the deceased person holds the house in their sole name, then someone will need to obtain probate to sell it. If the house is owned by joint tenants and one owner dies, the other can sell the house. They just need a copy of the death certificate.

To sell a house that is owned as tenants in common, probate will be needed.

How can a solicitor help with probate

Our probate solicitors can deal with the entire probate process, including:

• Filling out all Grant of Representation paperwork.
• Submitting all paperwork to the courts, providing copies to you.
• Advising you regarding the terms of the Will.
• Providing advice and information to you regarding your responsibilities as a personal representative.
• Help transfer property and close bank accounts.
• Deal with all estate administration and distribute the estate based on the instructions in the Will.
• Deal with any inheritance tax.

Our Wills, Trusts & Probate department can assist you with probate, estate administration, and trusts. They can also help you write your Will and organise your affairs for retirement.

Howells help clients in South Yorkshire and other areas. You can reach them by calling 0114 2743 481 or emailing [email protected].