We are often asked by clients if Probate is required when a spouse passes away. This is not as straightforward as it seems, as Solicitor, Poppy Cooke explains.
What is Probate and why is it necessary?
Some people may make many Wills throughout the duration of their lives. The Land Registry, banks and other institutions with which a deceased person had dealings need to be confident that they can accept the instructions of a purported Executor when asked to close sell or transfer the relevant asset.
Probate is the process of proving someone’s Will as their last Will and therefore the Will that can be acted on by the named Executor(s). The process of proving the Will is largely evidential whereby the Executor named in the deceased person’s Will submits evidence to the Probate Registry, (the Court that handles Probate applications) that this was the last valid Will made by deceased, the terms of which shall be carried out once the Court accepts the Executor’s evidence.
In conjunction with submitting evidence in relation to the Will, an Executor needs to declare the value of the deceased person’s estate to HM Revenue & Customs. Until such time as the Executor has shown that the estate does not attract a charge to Inheritance Tax, or Inheritance Tax is shown to be due, Probate will not be forthcoming.
The Grant of Probate is a legal document from the Probate Registry that confirms that the Executor has the authority to deal with the deceased person's assets and liabilities and administer the estate.
Administering the estate involves gathering in all the deceased’s assets, paying any debts and expenses and distributing the final assets to the beneficiaries in accordance with the Will. During this process the Executor will need to contact a range of institutions such as banks and building societies as well a governmental departments such as HMRC and the Council.
It is a common misconception that if the deceased left a Will there is no need for Probate. This is not the case. The need for a Grant of Probate will depend on your spouse’s specific financial circumstances, what assets are in the estate and how these assets were held.
Joint ownership of assets
Probate will not usually be needed if all the assets in the estate were jointly owned by both spouses. This can include assets such as a property, bank, building society accounts and savings accounts. Jointly held assets, usually pass to the surviving spouse automatically by the Right of Survivorship. In this instance the production of a death certificate is often all that is needed to transfer joint assets to the surviving owner, and the institutions are unlikely to require a Grant of Probate.
Property held as Tenants in Common
A property can be held either jointly or as Tenants in Common. If a property is held jointly, the property, as outlined above, will pass to the survivor under the Right of Survivorship.
However, if a property is held as Tenants in Common, then each individual holds a specific share of the property. This share will not pass by Right of Survivorship, but will pass in accordance with the deceased’s Will or if there is no Will then according to the Rules of Intestacy. It is likely that a Grant of Probate will be required to transfer or sell the deceased’s interest in the property, whether there was a Will or not. In some instances, the Land Registry may accept a death certificate and a copy of the Will, showing that the property was left to the surviving spouse under the Will and in this case, may not require a Grant of Probate – however, this is at the Land Registry’s discretion and is not guaranteed.
Assets solely owned by the deceased
You may need Probate if your spouse dies and leaves behind assets that were in their sole ownership. In some cases, if your spouse had a life insurance policy then the insurer may pay the proceeds to the nominated beneficiary on the production of a death certificate without a Grant of Probate, depending on its value.
Probate may be required if any of the assets in the estate owned solely by the deceased are worth over a certain amount. For example, some banks will close a deceased’s account if the account holds less than £10,000. However, the higher the balance in the account the more likely the bank will require Probate to close the account and distribute the proceeds to the executor. Each business has its own minimum Probate value and it is worth contacting any business that holds the deceased’s assets or liabilities as early as possible, to confirm if they require a Grant of Probate to settle the account.
What happens if there is no Will?
When someone dies intestate (without a Will), only certain people are allowed to apply for a Grant of Administration – this is governed by the Rules of Intestacy. This person will be known as an 'Administrator', as opposed to an Executor when there is a Will. The Administrator must apply to the Probate Registry for a Grant of Letters of Administration, rather than a Grant of Probate – this process is similar to the process for applying for a Grant of Probate. This document works in the same way as a Grant of Probate, making the person the ‘Administrator’ of the estate and allows them to value the estate, pay any debts and distribute the estate according to the intestacy rules.
The Intestacy Rules determine how the estate is distributed, if someone dies without leaving a Will. There is a specific list of beneficiaries listed in a particular order who are able to inherit under the Rules of Intestacy. It is therefore wise to ensure that your wishes are met by making a Will.
The need for a Grant of Letters of Administration, as with a Grant of Probate, will depend on your deceased spouse’s specific financial circumstances, what assets are in the estate and how these assets were held.
Expert legal advice
Whether or not Probate is required when a spouse passes away depends not only on the size of the estate but a range of other factors which must be taken into consideration.
For further advice on this issue, please contact a member of our Private Client team. If you are an executor, our experienced Private Client team can help guide you through the probate process, or even deal with the estate on your behalf as the Executor. If the Will is contested, our expert Contested Probate team can also help.