While probate may not be needed for all estates, estate administration will always be necessary. The presence of a Will has no bearing on whether a probate needs to be carried out, but it is needed to document the financial situation of the person who has died. In England, a probate is usually needed when the deceased has owned property or significant assets in their sole name, regardless of whether there is a Will or not. In both situations, the process is very similar, with some differences in terminology.
When a probate is required and there is a Will, the executor needs to apply for a grant of probate whereas if the probate is required and there is no Will, then the administrator of the estate will need to apply for grant of letters of administration, which allow the executor or administrator to act on behalf of the estate.
Probate is typically required when there are significant assets involved or if the estate exceeds a certain threshold set by law, known as the probate threshold. Typically, an estate valued at £5,000 or less will not be subject to probate, and most financial institutions will release funds lower than this. When a bank or financial institution requests a grant of probate or grant of letters of administration (also called a grant of representation) then it is likely that a probate will be required. Each financial institution will assess whether a probate is needed on a case-by-case basis, or they may have an individual predetermined set threshold, this varies greatly from one institution to the next, approximately £5,000 to £50,000, so it is worth checking with the relevant organisation.
If there are jointly owned assets, these are not likely to be subject to probate as they automatically pass to the surviving spouse or partner. However, certain jointly owned assets, such as property, might require a Grant.
It is important to note that even with a Will in place, certain assets may still need to go through probate if they were not properly designated or titled. This includes assets that are solely owned by the deceased individual without any named beneficiaries or joint owners, as well as items that have been “gifted” within seven years of death. Only an original Will document can be accepted.
While having a Will can streamline the distribution process and provide guidance for executors and beneficiaries, it does not automatically eliminate the need for probate. Indeed, when there are any valuable assets or property left to beneficiaries, a Grant of Probate will always be required for the collection and distribution of an estate. For peace of mind in a complex and often emotionally stressful situation, we highly recommend contacting a Solicitor or Probate Specialist to assist with the probate process.