What is probate and when is it needed?

When a loved one dies there is a lot to think about and so it can be difficult to know where to start and what needs to be done. Two of the biggest questions are – what is probate and do we need to get probate?

What is probate?

Probate is the legal process of proving the validity of a will and confirming the authority of the executors to administer the deceased person’s estate. If a person dies without making a valid will, then the intestacy rules apply, and the law determines who is entitled to apply for probate. This is normally the closest living relative of the person who has died. 

If a person dies with a valid will then, once the Probate application has been processed, the court will issue a document called a ‘Grant of Probate’. If the person has died intestate (without a valid will), then the court will issue a document called a ‘Grant of Letters of Administration’. These documents look very similar, are used in the same way, and are collectively referred to as ‘Grants of Representation’. In this article I am going to refer to this document as a Grant of Probate. A Grant of Probate will confirm various details of the deceased person and, importantly, will name the people who have the authority to administer the deceased person’s estate.

When is a grant of probate needed?

It is a common misconception that a Grant of Probate is always needed to deal with an estate – if an estate is very simple then that might not be the case. The person dealing with the estate will need to establish what assets were held by the person who has died, and their value. 

A Grant of Probate will always be required to deal with any property or land in the sole name of the person who has died, regardless of whether that property or land is going to be transferred to a beneficiary or sold. 

If the deceased person had money in bank accounts in their sole name, investments in their sole name or any other assets such as premium bonds or life assurance policies then it will depend on the individual requirements of each organisation.  For example, each bank will have its own rules based on the total balance of all accounts held with them at the date of death. If the account balances exceed the limit set by the bank, then the bank will advise that they require a Grant of Probate in order to close the accounts and release the funds. The limit varies greatly from bank to bank and so it may not always be clear initially whether a Grant of Probate is going to be needed or not. 

If the deceased held all assets jointly, for example with a surviving spouse or civil partner, then a Grant of Probate will not usually be needed. This is because jointly held assets usually pass automatically to the surviving owner. 

How Moore Barlow can help

We offer an ‘extraction only’ service which means that we will simply prepare the probate application based on the information you provide, obtain the Grant of Probate and then hand things over to you to collect in and distribute the funds. Alternatively, we offer a ‘full administration’ service where we will deal with the estate from start to finish, including contacting and liaising with all organisations to obtain the information needed to apply for probate, dealing with all Inheritance Tax aspects, finalising the income tax position to the date of death, collecting in funds, paying any cash gifts, dealing with administration period income tax issues and distributing the estate under the terms of the will or intestacy. 

Find out more about Moore Barlow’s probate services and contact one of our specialist probate lawyers.