Do I need Probate?

One of the most frequent search terms within private client work is Do I need probate?

Stephanie Chung, solicitor in the private client team at Wake Smith takes a look at when probate is required and why.

This article covers:

• What is Probate?
• Why is it important?
• Can assets be realised without probate?
• When is probate not required?
• How do I apply for probate?
• Your next move

What is Probate?

Probate is the process by which the High Court grants authority to a deceased person's executors to deal with that person's assets.

The word "probate" is shorthand for a document called the "grant of probate". The grant of probate is issued by the Court and gives brief details about the deceased person, their executors and the value of their estate.

Why is it important?

The grant is important because it is the executors' proof to the outside world that they are the people who are entitled to handle the deceased person's assets.

For example, if there is a house to sell, the solicitors acting for the purchaser would not pay the purchase money to the executors without first having sight of the grant of probate, since without this document there would be no proof that they were paying the correct people.

Can assets be realised without probate?

Some assets can be realised without producing a grant of probate.

If the estate is very small, perhaps just consisting of a few bank accounts, then banks will often agree to pay the balances direct to the executors in exchange for a signed indemnity.

Different banks have different rules on this, so the executors will need to check with the banks concerned.

National Savings products (e.g. premium bonds or savings certificates) can be accessed if their value is less than £5,000.

DVLA will also allow the executors to sell or transfer the deceased's car without a grant of probate and house contents can be sold without the executors needing to prove their legal ownership.

When is probate not required?

Some assets bypass the executors altogether and so again probate is not required.

If an insurance policy is "written in trust", this means it belongs to the named trustees and not to the deceased.

The insurance company will pay the policy proceeds direct to the trustees upon proof of the life assured's death.

The same arrangement usually applies to lump sums payable under pension schemes.

With certain exceptions, jointly owned assets do not require probate either - a jointly owned bank account will pass automatically into the name of the surviving joint owner on production of a death certificate. For all other assets, a grant of probate will be required.

How do I apply for probate?

It is obtained by applying to the Court with the deceased's original Will, a sworn executors' oath and an Inheritance Tax (IHT) form.

If there is any inheritance tax due, this must be paid to HMRC in advance.

Upon receipt of the papers and the tax, the Court will check the Will is valid and then issue the grant of probate.

Your next move

For further information please contact Stephanie Chung at Wake Smith Solicitors on 0114 224 2114 or email [email protected]

Find out more about our Wills and Probate services

Published 13/06/22