When Is Probate Required?13th Jul 2018
Probate (the legal proving of a will) is required by law in England and Wales if the person who died owned:
- property or land
- shares or other significant investments
- joint assets passing by survivorship
- bank and building society accounts and National Savings products totalling more than £5,000.
This sounds simple in theory – but in practice probating a will can be much more complex (for a variety of reasons).
View our probate solicitors page to learn more about why you need a grant of probate, who can apply for it, how much it costs and how long it takes.
Who Will Need To See A Grant Of Probate?
The Land Registry will need to see a grant of probate before it will transfer ownership of the deceased’s former home or any other property they owned.
A house or flat is usually the largest purchase that anyone makes in their lifetime so a grant of probate is essential before the property can be passed on or sold and the proceeds divided up between the named beneficiaries.
Banks, building societies and other financial institutions will usually need to see a grant of probate before they will release any deposits or savings to the executor(s) for distribution to the beneficiaries. And here’s where it starts to get more complicated…
You would think that a bank or building society would choose the aforementioned £5,000 limit to decide whether or not they need to see a grant of probate – but not so! Each bank or building society has its own in-house rules.
So some banks or building societies may pay out as much as £20,000 or £30,000 without requiring probate. Others may demand to see a grant of probate for much lower sums. It varies from bank to bank – and it can delay the process.
Banks’ And Building Societies’ Probate Rules
So what happens when a bank or building society decides that you don’t need probate. Can you just walk in and claim the money? Yes and no.
In rare cases it is not unknown for the deceased’s widow or widower to walk into the bank, produce a death certificate and proof of identity and be paid whatever was in the relevant account.
However, there is more to it than that. The bank would make the person sign an indemnity form compelling them to repay the sum they’ve withdrawn if it later transpires that they do not have any legal right to it.
Experienced executors who have administered many estates will tell you that the banks’ and building societies’ pragmatic approach to probate can be a double-edged sword.
On the one hand, it makes it easier to pay out bequests from estates where there was cash but no house/flat. (Expect to see more cases like this as today’s ‘Generation Rent’ struggles to afford homes of their own.) If every bank or building society were to keep to the £5,000 probate threshold then it would take much longer to administer and divide up estates.
But on the other hand, the pragmatism of the banks can create challenges for executors whose primary role is to safeguard the assets of the estate and ensure that they are distributed correctly according to the will.
This is why it is so important to see an experienced probate solicitor who can deal with any issues caused by banks or family circumstances if and when they arise.
When Is Probate Not Required?
Probate is not needed for estates worth less than £5,000 – and some banks or building societies may not bother about probate for higher sums. Probate is less likely to be needed if the deceased owned no land or property.
Probate is not needed for the general contents of a house, flat or other property. This can pose difficulties for the bereaved family if an item is identified in a will and subsequently cannot be found.
As experienced executors we take our role of safeguarding the assets of an estate extremely seriously. So when we visit the former homes of the deceased, we are careful to watch out for any telltale signs that items may have been recently removed.
Examples of this include fade marks on a wall where a picture used to hang…or rings or dust marks on furniture where a vase or ornament previously stood.
Get Expert Legal Advice From Experienced Probate Solicitors
Probate can be challenging so it is important to use a solicitor who specialises in wills, probate, estate administration, tax and trusts.
Specialist legal expertise is essential but it is only half the story. Experience is vital. Only real life can prepare a solicitor for the many complex family circumstances they will encounter when probating a will and administering an estate. It requires a special blend of sensitivity and authority.
Members of Coles Miller’s wills and probate team are accredited by the Society of Trust and Estate Practitioners (STEP). Our Probate Department is led by Partner Stuart Bradford, a STEP solicitor who has 15 years’ experience in this complex area of the law.
Contact Coles Miller Solicitor Anthony Weber, a Partner at the firm and head of our Wills & Probate Department, 01202 355695, for expert legal advice.