Whether probate is needed will usually depend on the property, money and other assets within the estate and how those assets were owned.
The Will and probate have different purposes. A Will explains what the person wanted to happen to their estate and normally appoints executors to deal with it. A Grant of Probate provides evidence of the executor's authority to manage assets where organisations require formal proof.
Do you need probate if there is a Will?
Sometimes, yes. If the person who died owned assets that banks, investment companies or other organisations will not release without a Grant of Probate, the executors will need to apply even though there is a valid Will.
It is advised to contact the financial organisations used by the person who died because each organisation has its own rules about when probate is required.
Probate may commonly be required where the estate includes:
- Property owned solely by the person who died
- Significant savings held in sole accounts
- Shares or investments
- Certain business or financial assets
- Assets that an organisation will not transfer without a grant
The value of the estate alone does not determine whether probate is necessary.
What is the difference between a Will and probate?
A Will is a legal document setting out what someone wants to happen to their estate after their death.
It can name:
- The people who should act as executors
- The people or organisations who should inherit
- How particular assets should be distributed
- Guardians for children, where appropriate
Probate is different.
Where a Grant of Probate is required, it provides official evidence that the executors have authority to deal with the deceased person's estate. This can allow them to access certain accounts, transfer investments and deal with other assets.
So, while the Will tells the executors what should happen, probate may be needed to enable them to carry it out.
If you are considering making or updating your own Will, our Wills solicitors can help ensure your wishes are clearly recorded.
When might probate not be needed if there is a Will?
There are circumstances where someone can leave a valid Will but the executors do not need to obtain probate.
Probate may not be necessary where the person who died:
- Only had savings
- Owned money or shares jointly with somebody else, where these pass automatically to the surviving owner
- Owned land or property as joint tenants, where ownership passes automatically to the surviving owner
Banks and other organisations may also release certain assets without probate, depending on their individual requirements.
This is why having a Will does not itself provide the answer. The executors need to look at what is actually contained within the estate and how each asset was owned.
Do you need probate for a jointly owned property?
Not always. If a property was owned as joint tenants, the deceased person's ownership will normally pass automatically to the surviving joint owner. Probate may therefore not be required for that particular property.
However, this does not necessarily mean probate will not be needed for the rest of the estate.
The person may also have held savings, investments or other assets solely in their own name that require a Grant of Probate before they can be dealt with.
How a property was legally owned should therefore be checked as part of administering the estate.
Do you need probate for bank accounts if there is a Will?
Again, this depends on the bank and how the account was held.
Each bank and financial organisation has its own rules about when it will release funds without probate. It is recommended to contact the organisations directly to establish what they require.
Jointly held money may pass to the surviving account holder, whereas a bank may require probate before releasing money held in an account belonging solely to the person who died.
Executors should therefore contact each bank or building society rather than assuming the same rules apply to every account.
Who applies for probate when there is a Will?
Where there is a valid Will, the executors named in the Will or in a valid codicil are normally entitled to apply for probate.
If several executors have been appointed, they will need to agree who makes the application. Up to four executors can be named on the probate application.
An executor who does not want to apply immediately may be able to reserve their right to apply later. An executor can also formally give up their right to apply or, in certain circumstances, appoint someone to apply on their behalf.
What happens before applying for probate?
Before applying, the executors will need to establish the value of the estate.
This generally involves identifying the deceased person's property, money, possessions and other assets, as well as considering any debts and Inheritance Tax requirements. An estimate of the estate's value is required as part of the probate application.
Where there is a Will, the original document will also normally need to be sent as part of the probate application. A photocopy cannot ordinarily be used.
Once probate has been granted, the executors can use the grant where necessary to deal with the estate.
How do you know whether probate is needed?
The best starting point is to identify everything within the estate and establish how each asset was owned.
Executors should then contact the relevant banks, mortgage providers, investment companies and other organisations to ask whether they require a Grant of Probate.
If you are unsure, our Probate and Estate Administration team can review the estate and advise whether an application is necessary.
For a broader explanation of the process, including what probate means and how an estate is administered, read our guide to what probate is.
How can I tell if probate has already been granted?
If you need to establish whether an executor has already obtained probate, probate records for England and Wales can be searched online.
For more information on what you can search and how to do it, read our article on how to find out if probate has been granted.
Need advice about a Will and probate?
Having a valid Will can make someone's wishes much clearer, but it does not necessarily remove the need for probate.
At John Fowlers Solicitors, our experienced Probate and Estate Administration team can help you establish whether probate is required, explain your responsibilities as an executor and assist with the application or wider estate administration.
If you need advice about dealing with an estate, contact John Fowlers Solicitors today.