The presence of a Will makes no difference in determining if Probate is needed...
It is a common misconception that Probate won’t be required for a deceased’s estate if they left a Will. However, the presence of a Will makes no difference in determining if Probate is needed.
A Will is designed to carry out the wishes of the deceased and includes how their Estate will be distributed after their death. Probate is something different.
What is Probate?
Probate is the procedure through which assets are legally passed, and generally involves dealing with the property, money and possessions of the deceased.
A Grant of Probate often needs to be obtained to allow the Executor of the Will to deal with all the assets of the Estate.
Two main factors can determine whether Probate is required
If the assets were held in the sole name of the deceased.
If the total value of the assets exceeds the Probate threshold.
These factors are applicable whether a valid Will is in place or not.
The current threshold for Probate is £5,000 – meaning if everything the deceased person owned is worth more than this amount, then Probate is likely be needed. This can vary depending on which banks and financial institutions are holding the assets.
Working out the value of the assets
It’s advisable to make a detailed list of all the assets the deceased owned, and confirm if they were held in sole or joint names.
If assets were owed jointly with someone else, as joint tenants, and the other person is still alive – then the assets will pass to them automatically under the Right of Survivorship. Probate can be avoided if this applies to all the deceased’s assets.
This differs when assets are held in joint names under tenants in common, as assets can’t be passed by survivorship. Instead they will be passed to anyone who is legally able to inherit in accordance with the will or intestacy.
Probate will definitely be needed to access and transfer any assets held in the deceased person’s sole name, if they are valued over the Probate threshold.
Keep in mind
Banks and other financial institutions will have their own individual limits when it comes to releasing money without the need for a Grant of Probate.
For example, if the deceased left a single bank account, with only a few thousand pounds in it, and nothing else – it’s unlikely they will need to see a Grant of Probate for such a small amount. It’s always worth checking with the individual organisation first though.
With or without a valid Will
As mentioned above, having a legally valid Will in place has no impact on whether Probate is required.
Probate is needed for any Estates where assets are above a certain value and not being passed automatically to a surviving joint owner, even when someone has died Intestate (without a Will).
When there is a valid Will an Executor(s) will be named, and it is their responsibility to apply for the Grant of Probate, if necessary. Once the Grant of Probate has been obtained, the Executor can distribute the assets to the beneficiaries named in the Will.
Without a Will, beneficiaries are determined by the law in England and Wales – and when it comes to Probate, one if these beneficiaries must apply for a Grant of Letters of Administration, instead of a Grant of Probate.