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Why Do I Have To Get Probate?

View profile for Helen Dexter
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It is a common misconception that if you have a Will it is not necessary to obtain probate to your estate once you have died, as our North East firm partner Helen Dexter explains....

Whether or not probate is needed depends upon the assets owned by the deceased at the time they died.

A grant of probate (also known as a grant of representation) is obtained by the executors named in the Will from one of the probate registries around the country and proves the entitlement of the deceased’s executors to handle the assets owned by the deceased. A Will gives the assets owned by the deceased to the people they wish to receive them (beneficiaries).The grant of probate enables the executors to transfer the assets out of the name of the deceased to the executors in order that, as executors, they can distribute the assets to the beneficiaries in accordance with the terms of the Will.

If all the assets held by the deceased were held in joint names with another person as joint tenants then the assets pass by survivorship to the surviving owner and a grant of probate is not required. If however there is a house or some land in the sole name of the deceased probate will have to be obtained.

When dealing with bank and building society accounts it depends upon the balance in the account as at the date of death whether or not a grant of probate will be necessary. Each bank and building society have their own discretionary threshold. For some banks the threshold is £50,000 but for others £15,000. If there are numerous accounts held by the deceased with different organisations it is sometimes easier to simply obtain a grant of probate rather than the executors having to complete countless different forms for each organisation.

If shares (or unit trusts) are held it is usually necessary to obtain a grant of probate in order that the shares or unit trusts can be sold or transferred to a beneficiary. Sometimes if the shareholding is very small and not of  great value it is possible to deal with the shares without the need to obtain a grant of probate.

In order to obtain a grant of probate it is necessary to complete an inheritance tax form detailing all the assets and liabilities in the estate.  The necessity to complete an inheritance tax form does not necessarily mean there is inheritance tax to pay. Whether or not inheritance tax is paid depends upon the value of the estate and what type of beneficiaries receive the estate. Solicitors also prepare an oath which is sworn by the executors named in the Will.

If the deceased did not leave a Will then there are no executors who can obtain a grant of probate. A grant of representation from the probate registry may however still be required depending upon the assets owned by the deceased at the date of death. Who is entitled to obtain the grant of representation however depends upon what family members survived the deceased. The intestacy rules (which apply when someone dies without a Will) dictate which people are entitled to the estate and entitled to obtain the grant of representation.

As solicitors we have many years experience in dealing with estates and obtaining probate or a grant of representation to both simple and complicated estates quickly.  Obtaining a grant of probate to an estate does not need to take a long time. 

If there is a need to obtain probate quickly, for example when the house is in the process of being sold, we can often obtain a grant of probate within 3 to 4 weeks of the death.