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Is probate needed if there is no Will?

View profile for Sue Nicholson
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The death of a family member or friend will be a devastating time, changing your life and leaving you with many different arrangements to make, all while you try and grieve and come to terms with what has happened.  Making arrangements for the probate application will be one of the first things you need to do, and we are often asked whether this needs to be done when there is no Will.  While there are certain situations when probate is not needed, the presence of a Will is not one of those.  Sue Nicholson, Associate Solicitor in our Private Client team, explains more here about when probate is and is not needed, and how we can support you through this time of change in your life.

Passing away without a Will

Writing a Will is one the most important documents we can have to protect our future and ensure that our estate is divided as we wish once we have passed away; however 54% of people living in Britain do not have a Will and so risk dying intestate.  When this happens, the rules of intestacy determine where your estate goes, which you may not agree with. 

“We see, on a regular basis, the unfortunate fall-out when someone passes away without a Will, which can be particularly complicated if they are divorced, have married for the second time, or have step-children,” explains Sue.  “While none of us want to consider our own mortality, having an up to date Will is the only way to secure our own wishes and reduce the risk of complications for our loved ones in the future.”

What is probate?

Applying for probate is the legal process which grants you the right to distribute the estate of the person who has died.  While having a Will does not impact whether probate is required, you will need to ascertain if there is a Will as that will affect which document you apply for, known as the Grant of Representation.  If there is a Will and you are named as the Executor, then you will apply for a Grant of Probate.  If there is no Will, then the rules of intestacy will also determine who should apply for a Grant of Letters of Administration.   This is the only difference that not having a Will has on the probate application.  The application process, and subsequent estate administration, remains the same whether there is a Will or not.

When is probate required?

There are certain circumstances when applying for probate is not needed, which include:

  1. The estate is valued at under the probate threshold, which can vary from institutions.
  2. The assets within the estate were jointly held with a co-owner, normally a spouse or partner.

How the assets were held between the deceased and another person will determine whether probate is needed.  If they were held as Joint Tenants with a person who survives the deceased, then that asset will automatically pass to the other person, no matter the contents of the Will, and probate may not be needed if this applies to the entirety of the estate.

However, if the assets were held as Tenants in Common the same does not apply; therefore, the assets will be distributed according to the Will or under the rules of intestacy and probate will be required if the assets are valued at over the probate threshold.  Similarly, if the assets were held solely in the deceased’s name and valued at over the threshold, a probate application will be needed.

The majority of banks or financial institutions will normally grant access to the funds if the deceased’s bank account held less than £5,000.  Bank accounts are only part of a person’s estate, which would also include:

  • property
  • businesses
  • shares
  • pensions
  • life insurance
  • investments
  • physical assets such as cars or jewellery. 

Typically, if a person’s whole estate is valued at less than £15,000, probate is not required. 

How do I apply for probate?

There are several steps involved in applying for probate, including:

  1. Registering the death and obtaining the death certificate.
  2. Valuing the estate - this is often the most complicated aspect and could involve professional valuations.  It is at this stage when you will need to confirm how assets were owned.
  3. Valuing any gifts the person made in the previous seven years before their death.
  4. Ascertaining whether there are any outstanding debts, such as a mortgage, loan or credit cards.
  5. Calculating the amount of Inheritance Tax due if the total value of the estate falls above a minimum threshold of £325,000 and ensuring that this is paid within six months from the date of death. There are potentially other reliefs and exemptions applicable when calculating Inheritance Tax so it is vital to take the appropriate legal advice at this time. Payment of Inheritance Tax needs to be made before the Grant of Representation will be granted.

Once all of these details are confirmed, you can apply for probate. 

What happens after the Grant of Representation has been received?

Once you have the Grant of Probate, or Grant of Letters of Administration, you will need to contact the organisations where assets are held, supplying them with a copy of the probate for them to release those to you.  You will then need to settle any debts prior to distributing the estate according to the Will or the rules of intestacy.

“We would urge everyone to make their Will when they can as administering an estate when the person has died intestate will result in a longer process for those left behind,” concludes Sue.  “While a Will names the Executors, without a Will a person would need to be appointed and then administer the estate under the rules of intestacy which may seem like it would be more straight forward as there are set rules as to who inherits.  However, this can leave families open to more claims against the estate with disputes between loved ones, and depending on the family situation, for example if there are second marriages or step-children, it can make it harder to determine who should inherit.”

We offer a free 30 minute appointment to those who are faced with the task of applying for probate; to book your appointment today, contact us on 01329 222075 or email privateclientenquiries@warnergoodman.co.uk.

Alternatively, you may find the following resources useful:

ENDS

This is for information purposes only and is no substitute for, and should not be interpreted as, legal advice.  All content was correct at the time of publishing and we cannot be held responsible for any changes that may invalidate this article.