26 November 2018

What is probate and do I need to get it?

5 min read

 

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When someone dies there is a list of things that need sorting out, from registering the death to organising the funeral. You may have been told that you need to get probate, but what is it and do you always have to get it? 

What is probate?

A will tells you who should get what when someone dies. But to access the money left by the person who died or transfer possessions or property to the right people, you will usually need to apply for legal authority to do so. In England and Wales the proper name for this process is ‘applying for a Grant of Representation’ but it’s often just referred to as ‘getting probate’.

The document itself acts as proof that you have authority to deal with everything owned by the person who died. Once you have it you can send it to all the organisations the deceased had assets with. They will then transfer the money or property to you so you can pay off any debts and distribute the rest to the people named in the will.

In Scotland the process is called Confirmation and in Northern Ireland it’s known as a Grant of Probate.

Who applies for probate?

If the person who died left a will then it will be the executors named in the will who apply for probate.

Executors are the people who are legally responsible for sorting out the deceased person’s estate (that’s their property, money and possessions). This means they need to make sure any taxes and bills are paid, gather in any money and then transfer this and any property or possessions to the people named in the will.

If there aren’t any executors named in the will or they are unwilling or unable to act then any adult who is due to inherit under the will can apply to become an administrator. The administrator’s role is largely identical to an executor’s role.

If there’s no will at all then the next of kin can apply to be an administrator but there is an order of priority which dictates who can do this. In this situation, if your partner dies and you are unmarried or not in a civil partnership, you won’t normally be able to take on the administrator role.

In Scotland if there are no named executors or they are unwilling to act, an executor dative is appointed. This will normally be the surviving spouse or civil partner. If not, another person entitled to inherit from the estate may be able to apply.

When is probate needed?

Probate isn’t always needed.

Here are some situations when it may not be needed:

  • If the person who died just left small amounts in the bank or small value insurance policies and some personal possessions.

Banks, building societies and insurance companies will release certain amounts of money without a Grant of Representation or Confirmation. Each organisation decides what its own rules will be so you need to check with each one. Some banks will now release up to as much as £30,000 or even £50,000 without seeing a Grant of Representation.

  • If you and your spouse or civil partner owned your property as joint tenants and everything else in joint names and one of you dies.

In this case everything passes to the surviving spouse automatically without probate. But be aware that if the person who dies owned anything in his or her sole name then you may need probate for those particular assets.

Owning something as joint tenants means the survivor automatically inherits from the person who dies first. Married couples and civil partners usually own property as joint tenants.

And here are some situations when you will always need probate:

  • If the deceased owned a property in their sole name or as tenants in common with another person.

Tenants in common is a particular type of joint ownership where two or more people hold distinct shares in something – often a property – and each can pass their own share to whoever they like under their will. If you’re unsure whether this applies, get legal advice.

  • Where banks and any other financial institutions require a Grant of Representation.

Each organisation has its own rules about when it will require a Grant of Representation before releasing or transferring the deceased’s assets.

In Scotland, if the estate is small (with a total value of less than £36,000) you only need to get Confirmation if it’s required by one of the organisations with which the deceased had assets. You also won’t need Confirmation if the person who died owned everything jointly with someone else and everything passes automatically to the surviving joint owner.

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