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When Is Probate Required?

View profile for Hardeep Gill
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When an individual passes away, there are a number of matters which the executor of the Will or the administrator of the estate will need to efficiently handle before beneficiaries are entitled to receive their inheritance. This includes finding out whether the estate requires a grant of probate (for those named as an executor in the Will) or a grant of letters of administration (where there is no valid Will).

Grant of probate, or letters of administration, provides the appointed executors or administrators with the legal authority to handle all matters involved in administrating the deceased person’s estate.

Examples of these responsibilities include:

  • Opening a bank account for the estate
  • Collecting relevant information in regard to the deceased’s assets and liabilities
  • Collecting the deceased person’s assets
  • Paying off the deceased person’s debts
  • Calculating and paying inheritance tax
  • Distributing the estate to beneficiaries

In this article, we discuss:

  • When probate is needed?
  • In what circumstances do you not need probate?
  • Who decides if probate is needed?
  • What is the threshold for probate in the UK?
  • What happens if you don’t get probate?
  • Can you sell a house without probate
  • Can a Will be sorted without probate?
  • Do you need a solicitor for probate?

When is probate needed?

In most estate administration cases, a grant of probate will be required. However, to determine when probate is required for an estate, there are a number of factors which will be first considered.

In what circumstances do you not need probate?

Most estates require probate, but there are some circumstances when probate is not required. Examples of this include:

  • If the deceased person’s property was jointly owned and purchased as beneficial joint tenants, their share of the property will automatically be inherited by the other owners under ‘Right of Survivorship’
  • How assets were owned (whether in joint names or the deceased person’s sole name)
  • Where the estate is considered small – the deceased person’s assets fall under the probate threshold set by financial organisations
  • If the person was considered to be insolvent when they died. To simply put, this means that their debt, tax, or other expenses outweighed the assets they actually had
  • If the deceased only had savings
  • The estate is made up of cash

If an asset is solely owned, the value of the asset will need to be determined. For jointly owned assets, these will be deducted from the value of the estate.

Who decides if probate is needed?

Deciding whether probate is required for an estate will entirely depend on the particular financial organisations that the deceased person’s assets are held with. For example, their bank, mortgage provider etc.

What is the threshold for probate in the UK?

In England and Wales, there is no set probate threshold. Whether probate is required or not depends on the bank and the value of the estate.

Some financial organisations set their thresholds as low as £5,000, while others will have a higher threshold, such as £50,000, before they require probate. You can contact a bank or other financial organisation directly to find out their personal probate threshold.

Financial organisations may choose to change their personal threshold based on whether the deceased person died with a valid Will in place, or as an intestate person.

What happens if you don’t get probate?

If probate is not obtained for an estate which requires it, the executor or administrator will not be able to access the deceased person’s funds or transfer titled assets, such as property, cars and bank accounts, in order to sell. These assets will remain in the deceased person’s name until probate is acquired and, in many cases, will require financial payments.

Withholding a Will is a crime, meaning the executor or administrator of the estate could potentially face criminal proceedings. They will also be held personally liable for any estate expenses or suffering experienced by beneficiaries.

Can you sell a house without probate?

Executors or administrators have no legal authorisation to sell a property if probate has not been obtained because the title is not able to be transferred over.

A deceased person’s property can only be sold if someone else’s name is also on the title deeds.

Can a Will be sorted without probate?

Whether the deceased person has a valid Will or not, does not decide if probate is required.

To put simply, if a Will covers an estate which requires the grant of probate, for example it is of higher value, the details included within the Will will not be able to be carried out until probate has been obtained. If the assets covered by the Will are under any relevant financial organisations’ thresholds, probate will not be required to follow the terms of the Will.

Do you need a solicitor for probate?

Using a solicitor for probate is not a legal requirement, but in most instances, the advice and support of a solicitor is a valuable investment to ensure the legal matter you are dealing with has been correctly executed.

Our probate solicitors in Tonbridge can assist with any and all parts of the probate process. We can be on hand whether you need help with a single matter or if you would like us to take over the administration of the estate for you, so you don’t have to worry.

Speak to our probate solicitors in Tonbridge, Kent

To discuss your requirements with our probate and estate administration experts, please call us on 01732 353305 or use our simple contact form and we will get back to you quickly.

Bailey & Cogger Solicitors is now incorporated by Hatten Wyatt, meaning you can also access our expertise through local offices in Chatham, Gravesend, Maidstone and Tenterden.

We can also offer meetings by Zoom for clients who have to travel extensively or who now live abroad. In exceptional circumstances, home visits can also be arranged.