Do All Wills Have To Go Through Probate?23rd May 2022
Do I Need To Apply For Probate If There Is A Will?
Not necessarily. Probate is a legal document you need to get before you can deal with the estate of someone who has died, however If the financial value of the estate is low, or the property and assets were jointly owned, you may not need probate.
What Is Probate?
The word 'Probate' comes from the Latin 'probare' which means 'to test or prove' - it is the official ‘proving’ of a will.
Probate is the legal process for handling the estate of someone who has died, it must be granted by a court to confirm that your will is a valid legal document and that what is written are your true final wishes.
How Do I Know if Probate is Needed?
Probate is needed if the deceased owned a property or significant assets (such as shares) in their sole name.
Legally, estates worth less than £5,000 do not have to go through probate.
However, banks, building societies or other financial institutions will want to see a Grant of Probate (also known as a Grant of Representation) if the estate is worth more than a certain amount. Each institution has its own threshold.
How Can I Avoid Probate?
When the person owns their property and assets joint with another person, probate will not be needed, the assets will be passed directly onto the other person who owns the property.
It is possible to avoid probate by putting assets into a trust – thereby removing them from the estate. As well as speeding up matters, this can also offer tax benefits.
What If There Is No Will?
As you will have read above, not every estate has to go through probate. Estates can pass between spouses without the need for probate – as long as the assets are held jointly and passed by a legal process known as ‘survivorship’.
But sometimes where there is no will a court authority is still needed. The legal term for this is a Grant of Letters of Administration.
If the deceased died without a will then the laws of intestacy apply. This is a set of rules that determines who inherits what – based on the hierarchy of the surviving family.
It is a one-size-fits all system that has been drawn up by the government. The only way to avoid the intestacy laws is to make a will and ensure that it has been correctly signed and witnessed according to the law.