Do I need a Grant of Probate?

Most people dread the idea of having to apply for a Grant of Probate, but many have no idea what it actually is. Some assume it is a standard process, whilst others perceive it as another hurdle that is being put in their way to delay the grieving process and administration of an estate even further.

The fact of the matter is whatever you may think about the need for applying for a Grant of Probate, it is not always required. The requirements for such a Grant of Probate have nothing to do with whether the deceased left a Will or had a Lasting Power of Attorney during their lifetime; it is purely based on what assets need to be dealt with and how those were held at death.

What is a Grant of Probate?

Before the Executor or Administrator can claim, transfer, sell or distribute any of the deceased’s assets they may have to apply for a Grant of Probate (or Letters of Administration). You can apply for a Grant of Probate if you are the ‘Executor’ of the Will or you can apply for Letters of Administration if the deceased left no Will.Once the Grant of Probate or Letters of Administration has been issued the Executor or Administrator will then have the legal authority to deal with the estate, either in accordance with the deceased’s Will or the Intestacy Rules, whichever may apply. (Please note that the Intestacy Rules and Grants of Letters of Administration are outside the scope of this article and will not be dealt with at this time)

Is a Grant of Probate necessary?

The simple answer is that a Grant of Probate is not always necessary and it will depend on the following factors:-

  • Jointly held assets

If someone has died and you are trying to work out if a Grant of Probate is needed, a good place to start is to make a detailed list of all the assets he/she owned. You then need to confirm if these assets were held in the deceased’s sole name or in joint names with someone else. Property assets that are owned jointly can be held one of two ways; as “Joint Tenants” or as “Tenants in Common”.

If any property is held in joint names as “Joint Tenants” with someone who is still alive, the asset will automatically pass to the co-owner by survivorship. If this applies to all the deceased’s assets, a Grant of Probate will not be required.

If any property is held as “Tenants in Common” then the property will not pass by survivorship. The property will therefore pass to whoever is legally able to inherit under the deceased’s Will (or Intestacy Rules). This may mean that a Grant of Probate is required. Bank accounts and other assets held in joint names also tend to pass to the other holder by way of survivorship, bypassing the need for a Grant of Probate.

  • The Value of the Asset

In order to apply for the Grant of Probate, you will also need to know how much each asset is worth, as at the date of death, together with the balance of any debts outstanding. These figures are important as they will be required on the relevant Probate application forms, if a Grant of Probate is required. It is also worth remembering that the Probate application form must be accompanied by the relevant Inheritance Tax form, even if no Inheritance Tax is due.

If the deceased person owned an asset in their sole name, a Grant of Probate may not be needed if it is worth very little. That’s because most banks and financial institutions will release funds if the deceased held or owned less than £5,000. However, each bank has its own minimum threshold and it’s worth checking the position with them.

It is also worth mentioning that when an estate has an overall low value (generally less than £15,000), it can sometimes be referred to as a “Small Estate” and dealt with under a separate procedure set out by the organisation with whom the investments are held and a Grant of Probate will not be required in that instance. It is always worth checking this with the organisation.

If the deceased owned assets worth more than the above then usually you will need to apply for a Grant of Probate. Advice should always be sought as to whether this will be necessary.

How long does the Probate process take?

This will depend on what assets need to be dealt with and how complex the estate is. For some people applying for the Grant of Probate can be quite time consuming and with other commitments getting in the way, it can feel like months have passed with little being achieved. For some, however, the process takes time due to the complexity of the estate and additional assets being found along the way. Remember that date of death values for all assets will need to be entered on the Inheritance Tax forms when applying for a Grant of Probate, which can take time to collate. On average, a Grant of Probate takes around three to six months to obtain following death.

However, other complications can cause the process to take considerably longer, such as if the Will is contested, or the deceased did not keep clear records of all their assets. If Inheritance Tax is due then the majority, if not all of the liability, will need to be discharged before the Grant of Probate can issue providing the legal authority to deal with the assets in the estate.

Summary

You are not alone. We are here to help you tackle the process in applying for a Grant of Probate and we would always suggest obtaining legal advice in the first instance.

If you would like to discuss any of the above issues then please feel free to contact us on 01245 504904 to book an appointment to discuss these in more detail.

Jenna is a Solicitor in our Private Client team. She acts for clients on matters including making Wills, preparation and registration of Lasting Powers of Attorney, Deputyship applications with the Court of Protection and Probate work.