There seems to be an assumption that probate is not needed on their loved one’s estate if there is a will in place; however, the fact is this makes no difference. Whether or not there is a will, probate may still be needed. There is no catch-all answer as to whether it is necessary or not. Probate refers to the process of someone being granted permission and named as the legal authority to wind up the affairs of a deceased person. The document that grants this is known as the Grant of Probate if there is a will, and the Grant of Letters of Administration if there isn’t one. These documents essentially work in the same way.
As such, when people say whether or not probate is needed, the above is what they’re referring to.
When is Probate Required?
Whether or not probate is required will depend entirely on:
- How assets are being held, which will be either in joint names or in the sole name of the deceased
- How much the assets are worth
Joint or Sole Ownership of Assets
One of the best places to start when you are working out whether or not Probate is required is to make a list of all the assets owned by the deceased. After you have your list, run through it and determine whether assets were held solely or jointly.
When you have assets that are jointly owned, they can be held in one of two different ways:
- Joint Tenants
- Tenants in Common
If assets are held as a joint tenant with an individual who is still alive, then that asset will automatically pass to the co-owner as per the Right of Survivorship. Probate is not required if this method is used for the deceased’s assets.
When an asset is held as a tenant in common, it will not pass down by the right of survivorship. Instead, they will pass to whoever will inherit them as per the deceased’s will (or, if there isn’t a will, the Rules of Intestacy). There’s a chance that probate will be required for these assets, but it depends on their value and who is inheriting them.
If the assets in question were solely owned by the deceased, their value must be determined. If the value of a particular asset is more than the probate threshold (see below), then probate is needed to sell or transfer the assets.
If you are struggling with working out whether or not you need probate for the above, then you may want to visit Probates Online, which will be able to assist with the process.
Asset Value
Even in circumstances where the deceased person owned an asset in their sole name, probate may not be necessary if the asset’s value is low. This is because most banks and financial institutions are happy to release funds held by the deceased if they were worth less than £5000. This is a general rule, but every bank makes a minimum probate threshold at their discretion, so it is worth checking their position on the matter.
If the assets fall under this threshold, then the deceased has what is known as a Small Estate, and in these circumstances, probate isn’t necessary. It can be difficult to figure out what will be considered a small estate as every bank will have its limitations.
If it turns out that the deceased owned assets worth more than the threshold, then you will need to go through the probate process. Chances are if an individual owned a property, then this will fall over the probate threshold, and therefore, probate will be necessary.
Is There a Valid Will?
Whether or not there is a valid will in place will have no impact on whether probate is required. That being said, you still need to find out whether or not there is a will in place; this is because a will is going to name the executors, and the executors will be responsible for distributing the estate. If the executor named in the will decides they would not like to take on the role, then a priority order is established that confirms who can apply.
If there is no valid will in place, there is a law established within England and Wales that determines who the beneficiaries are. These laws are called the Rules of Intestacy and will determine who should be in charge of administering the Estate.
Is Probate Necessary if there is a Will in Place?
There seems to be a common misconception that having a valid will in place will affect whether or not the assets of a deceased person will go into probate. This isn’t the case, and the circumstances surrounding whether or not assets will go into probate are whether they were in a joint name and how much they are worth.
There are some instances where, if an asset is held in joint names, it will simply pass to the co-owner. In other circumstances, the deceased’s share will pass to their beneficiaries; if this happens probate may be needed.
The estate’s value also determines probate; if it is not worth very much, then it won’t be necessary; however, if it exceeds the probate threshold, it will be.
If you have any questions about probate, whether it’s necessary and what your next steps should be, then do not hesitate to contact probates online. Our team of specialists are on hand to assist with any and every query you may have, so do not hesitate to contact us.