Do You Need Probate If There Is a Will?

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Do You Need Probate If There Is a Will?

When someone dies, handling their estate can be a complex and emotional process. One of the crucial questions that often arises is whether probate is necessary if the deceased left a will. This blog post explores the nuances of probate in the UK, the circumstances under which it is required, and provides guidance for executors and beneficiaries navigating the probate process.

Understanding Probate

Probate is the legal procedure used to manage the estate of someone who has died. This includes resolving all claims and distributing the deceased person’s property under a will. In England and Wales, the document issued by the Court that grants the executor the authority to deal with the deceased’s estate is called the Grant of Probate. In Scotland, the process is known as ‘confirmation’ and in Northern Ireland, it’s simply referred to as ‘grant of probate’ as well.

What Is a Will?

A will is a legal document in which a person, the testator, expresses their wishes as to how their property is to be distributed at death and names one or more persons, the executors, to manage the estate until its final distribution. Having a will can streamline the probate process but does not necessarily exempt an estate from it.

Do You Need Probate If There Is a Will?

The simple answer is: it depends. Here are several factors that determine whether probate is necessary when there is a will:

The Value of the Estate

Probate is generally required if the total value of the deceased’s estate exceeds a certain threshold, typically around £15,000, but this can vary significantly depending on the financial institutions where the assets are held. Banks and building societies each have their own limits for how much they are willing to release without requiring a grant of probate.

The Type of Assets Involved

  • Property: If the deceased owned property solely in their name or as tenants in common, probate will almost certainly be required to transfer ownership or sell the property.
  • Shares and Investments: For substantial portfolios of stocks, shares, or bonds, financial institutions typically require probate to release the investments.
  • Insurance Policies: Unless policies were written in trust, pay-outs might need probate to be released, depending on the policy amount.

Jointly Owned Assets

If the deceased owned assets jointly with another person, such as a home or a bank account, these can usually be transferred to the surviving owner without the need for probate. However, the specifics can vary depending on how the ownership is structured and the type of asset.

Claims Against the Estate

If there are likely to be claims against the estate or if the will itself could be contested, probate provides a level of legal authority and protection to the executors in dealing with these claims.

The Process of Applying for Probate

If probate is necessary, the executor named in the will must apply for a Grant of Probate. The process involves several key steps:

  1. Valuing the Estate: All the assets (property, investments, cash) and liabilities (debts, loans, funeral expenses) of the estate must be accurately valued.
  2. Applying for Probate: This includes submitting a Probate Application Form (PA1P) and an Inheritance Tax Form to HM Revenue and Customs (HMRC), even if no tax is due.
  3. Paying Any Inheritance Tax: This must be done before probate is granted, though payment can be spread over time for certain assets.
  4. Attending a Probate Interview: Depending on the complexity of the estate, an interview may be required to confirm the details of the application.
  5. Receiving the Grant of Probate: Once issued, this legal document gives the executor the authority to deal with the deceased’s assets according to the will.

When Probate May Not Be Necessary

Probate is not always required when there is a will. For smaller estates with no property and with assets below the threshold required by financial institutions, the execution of the will can be handled without the need for a Grant of Probate.

Conclusion

Determining whether probate is necessary when there is a will can be complicated. It largely depends on the value of the estate, the types of assets included, and how these assets are owned. Executors should carefully assess the estate and, if in doubt, seek legal advice to ensure that they are complying with all legal requirements. Probate provides a framework for dealing with the deceased’s affairs systematically and ensures that all debts are paid and assets are distributed according to the deceased’s wishes as outlined in their will. This process, while sometimes lengthy and complex, is crucial for the proper management of the estate and the peace of mind of all parties involved.

Avatar of DLS Solicitors by DLS Solicitors
13th May 2024
Avatar of DLS Solicitors
DLS Solicitors

Our team of professionals are based in Alderley Edge, Cheshire. We offer clear, specialist legal advice in all matters relating to Family Law, Wills, Trusts, Probate, Lasting Power of Attorney and Court of Protection.

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