When is probate needed in England and Wales after a death?
Help With Probate in England & Wales
Whether you require probate or not is often up to third parties such as banks, insurance companies etc. One useful thing which may just tip the balance, assuming there is not a prepaid funeral plan, is to ask the bank or savings institution if there is enough money in the deceased’s account to pay for the funeral – or at least a part of it – they may agree provided they pay the funeral director direct.
Learn about the Duties of Executors here.
Whose responsibility is it to get probate?
If the person left a valid Will, this should name one or more executors, and it is their responsibility to apply for probate. But they can stand down provided they have not carried out any duty of an executor, or they can appoint a professional to do the work. If there is no Will, then inheritance rules called the rules of intestacy will determine whose responsibility it is to get probate. They will be known as an Administrator rather than executor, but it is pretty much the same thing. Normally it would be the surviving legal partner if any, then the children would have equal rights to apply, if none, then the parents, if none then brothers and sisters and then on to more remote relatives, if none then the Bona Vacantia office of the Treasury. More info.
Do I need probate if there is a Will?
It makes no difference whether or not there is a valid Last Will and Testament, but if there isn’t one, the probate rules and the Rules of Intestacy both apply.
Do I need a Grant of Probate if my husband/wife dies?
We are often asked if probate is required when a husband or wife has died, and the answer is still maybe. There is no specific difference if you are married (except with Inheritance Tax), or have a Will, though legal husbands or wives do have automatic rights to some of the estate if there is not a valid will, but that is another topic entirely (the Rules of Intestacy).
As an example, long ago, when my father died, leaving everything to my mother, there were no issues at all, and everything was transferred to mum, except one modest investment worth just £1,500. So, if I had to pay a solicitor to get a UK probate grant, it would have cost more than the value of the investment! When that happens, you have to put the relevant share of all assets on the probate forms, not just the problem item, so always keep a record of the valuations at the date of death just in case something trips you up later, such as shares you were not aware of. Careful attention to record-keeping is a massive help with probate.
Do I need Probate for joint assets?
Many things which are owned in joint names will automatically pass to the survivor, once the institution has seen the death certificate. That said, much fraud is committed as this is not always the case, and just having your name on account does NOT necessarily mean you inherit it.
Do you need probate to sell a house / bungalow / flat?
But where a property is owned as tenants in common, this means that each owner has their specific share of the property, so the property does NOT automatically pass to the surviving owner but instead will pass according to the deceased owner’s Will or the Rules of Intestacy. Such transfers are free of inheritance and capital gains tax for most married couples if they go to each other, but not necessarily for unmarried people. Sadly, lots of people do half the job and leave their half of the house to the children direct, creating needless future capital gains tax bills, and risking the well-being of the survivor in the event that half of the property has to be sold to pay for a child divorce settlement. With a proper job on the Will, this is not an issue.
When is Probate not needed?
Often there may be no legal requirement for probate, but one of the asset holders, as in the case of my father, refuses to part with the asset without seeing a grant which requires details of the whole estate, not just the item causing the problem. As discussed above assets held as joint tenants (where each part in effect owns all the assets) can pass automatically. Generally, all that is needed is an original death certificate and a bit of paperwork. For married couples who are both British or UK domiciled, that may be it, but things are different if not, and a Grant may be needed – perhaps both in the UK and abroad.
Guide to Probate is here. Or Assisted Probate Service (flexible help with probate).
Is probate needed to release money from Banks?
Bank and building societies probate limits as at August 2023.
According to research by the Coop, these are the limits below which some institutions MAY release funds without a grant:
An approximate maximum of certain institutions will at least consider paying out without requiring a grant. There is no guarantee that anyone will release a penny without a grant of probate or letters of administration. These limits do change, so if any are out of date, please do let us know. Remember the comment at the top, as sometimes that will save lots of money by pushing the holding below the maximum amount released without a grant: ask the bank if they would pay the funeral director’s bill direct out of the deceased person’s savings. WARNING: if you pay first, they will NOT refund you, so you will have to wait until the grant of probate is available then the executor can refund the cost.
If you are unlucky, you may find you have savings with more than one bank in the same overall ownership – and they might just add the accounts together before deciding if they will relase without a Grant or Letters of Administration. Similarly, if savings within a Banking Group exceed £85,000 per person, the excess will not be protected in the event of the banks’ insolvency.
Be aware that even big banks fail to understand the rules on whether or not a particular joint account passes automatically to the joint holder or not. They do NOT give advice, just guidance, so if they get it wrong they won’t pay the fine from HMRC for a fraudulent application, or refund the beneficiaries who have lost out on their share of the joint account,
- Atom Bank – £15,000
- Aviva – £50,000
- AXA – £10,000
- Bank of Ireland – £10,000
- Bank of Scotland – £25,000
- Barclays – £50,000
- Birmingham Midshires – £25,000
- Britannia – £30,000
- Cheltenham & Gloucester – £25,000
- Co-op Bank – £30,000
- Danske Bank – if gross value of whole estate is more than £25,000, probate required.
- First Direct – £20,000
- Halifax – £50,000
- HSBC – Decided on a case-by-case basis
- Lloyds TSB – £50,000
- Metro Bank information requested 14/4/23.
- Monzo £5,000
- M&S Money – £15,000
- Nationwide
- Under £5,000 – no grant of probate is required.
- £5,000 – £30,000 – a certified copy of the grant of probate is required, or alternatively the ‘close account’ form will need to be witnessed by a solicitor
- Over £30,000 – the original grant of probate is required
- Natwest – £25,000
- NS&I (National Savings / Premium Bonds) – £5,000 to £15,000 depending on the will and the number of executors (they are particularly sticky!)
- Post Office – £10,000
- Royal Bank of Scotland – £25,000
- Sainsbury’s Bank – £20,000
- Santander – £50,000
- Skipton Building Society £15,000
- Starling – £7,500
- Tandem information requested 14/4/23.
- Tesco Bank – £25,000
- Woolwich – £15,000
- Yorkshire Building Society – £30,000
Documents banks will always require
If probate is required the banks will always require the following :-
- original death certificate or certified copy by a solicitor
- the banks closure form
- proof of identification
- Grant of probate or Grant of letters of administration if there is no will
- copy of the will if there is one
Do I need probate to sell a house / flat / bungalow etc?
See the note above about Tenants in Common. If you are joint tenants and therefore the property is transferred to the living survivor, it can be sold immediately. But more commonly the situation is that the property passes under the Will or Rules of Intestacy, and will need to be sold or transferred to the beneficiary, so some help with probate may be required. All sorts of complications can arise if anyone else is living in the property! If the property is empty, it is essential to contact the property insurance company and follow their instructions to the letter. If you don’t, and there is a fire or burglary, the executors may well be liable to cover the losses personally! There are more issues over property, but this is just to answer the question about whether probate is required. Fast sale process. For empty property insurance go here.
Do I need probate to sell or transfer shares after a death?
In rare cases, shares may be in joint names, and a death certificate may be enough, but usually, you will need to show the share registrar a grant of probate first. You should however advise them of the death as soon as possible, and there may be tax implications for the executors to deal with.
We’re happy to have a chat, but we can only give general guidance, not a definitive confirmation – but often it is obvious to us! 03 300 102 300. It’s often a complex question with sometimes an unexpected answer. We are here to help with probate, though we can only give general guidance, not legal advice. You can email us a question if you prefer: that said, there is lots of general probate help on this site. We are aiming to save you money!
Generally speaking, anyone leaving assets worth less than £5,000 is unlikely to require a grant. But remember that gifts (or loans not repaid) made in the previous 7 years – and sometimes 14 years – are taken into account. If it is a gift in which you retain a benefit (GROBs in the trade) it will probably fully remain in your estate. A typical example is a property you used to own but still live in despite “giving it away” – if you have paid full market rent, it may not be counted, but be very careful – help will be needed!
Failing to apply for probate where Inheritance Tax might have been due could result in serious and personal financial penalties. So be wary! Seek help with probate if you are in doubt, preferably through us of course!
If probate is required, the person dealing with it will always require the date of death value of everything.
So that will include (for example) any interest earned up until that date, so always ask for that in writing, and retain it just in case something forces you to apply for probate later on – I have known it to crop up 30 years later. So a thorough check now is best and avoids penalties if anything significant is found. And don’t forget loans both in and out.
f the asset holders (banks etc) won’t agree to a simple transfer, then you need to obtain a grant of probate – and that means you need it for EVERYTHING, not just the “awkward” asset. If you need a bit of help with probate, then ask us about the flexible Assisted Probate Service.
Do I need Probate UK?
Some assets always require probate – a property in a single name, or as tenants in common where individuals own shares of the home for example. Property or assets held as “joint tenants” generally pass semi-automatically to the surviving joint owner. But:
Fraud is often committed when “joint” accounts are claimed by the survivor when they actually had no right to the asset. This is a touchy area – if something is genuinely jointly owned, fine (but see above) but where the money effectively belongs solely to one person – have a care! Perhaps you need a little help with Probate? Or a lot – your choice!
Other common assets where a grant of probate is generally required and some probate help may be beneficial:
- Shares
- Life insurance policies not written in trust.
- Some pension benefits.
- Business assets<//wp:list-item –>
With a bit of advance planning, you can minimise the requirement for UK probate –for example, lifetime trusts are outside the scope, though they may well be part of the estate for Inheritance Tax purposes.
- property owned as joint tenants (as opposed to tenants in common which is shares) passes automatically to the survivor.
- Savings, investments, life insurance in trust can normally pass to the designated beneficiaries outside the estate – though it could be part of the estate for Inheritance Tax purposes.
- Sometimes a Deed of Variation could be used to appoint benefits back to an exempt person, typically the spouse, but not a partner who was not married / civil registered to the deceased.
Is the estate an Excepted Estate?
The eminent lawyer, Lesley Kind, explains the changes to excepted estates for deaths after 1st January 2022 far better than I can, and also draws attention to the possible difficulties that changes will make on subsequent sales of assets and the difficulty establishing base cost, which did not previously exist. Note that the period during which HMRC can call in an estate for review has been doubled from 5 weeks to 10 weeks. For earlier deaths, read on:
The estate will generally be an excepted estate if any of these apply:
- The total value is less than the Nil Rate Band of IHT (£325,000 at present) but you do need to be very careful that you have included everything which should be included which can (for example) include gifts made up to 14 years before (usually only 7). If in doubt, you need advice as the penalties for getting it wrong are severe.
- The estate is exempt – everything (or everything over and above the Inheritance Tax threshold) was left to a spouse or civil partner living in the UK or to a ‘qualifying’ charity (and the estate is valued at under £1 million)
- The deceased person was a ‘foreign domiciliary’ – they lived permanently abroad and died abroad and the value of their UK assets was less than £150,000.
An estate will also be an excepted estate if both of the following apply:
- The estate is less than double the IHT nil rate band (£650,000 in 2013-28 tax years.)
- All the unused IHT nil rate band from a deceased spouse or civil partner is transferable to the deceased as the first spouse/ civil partner to die had left everything to the person who has now died.
- If it is an excepted estate. then form IHT205 will usually be the correct form, plus form IHT217 if you’re transferring an unused Inheritance Tax threshold from a late spouse or civil partner to the deceased.
An estate will NOT qualify as an Excepted Estate if:
- The estate is valued at more than the nil rate band.
- If an estate worth more than £1 million is left to a spouse, civil partner or ‘qualifying’ charity.
- The estate is worth more than double the nil rate band when all the unused nil rate band has been transferred from a deceased spouse or civil partner.
- A nil rate band transfer is needed from a late spouse or civil partner to avoid paying IHT and the full nil rate band isn’t available – even if it is not needed.
- The deceased had a permanent home outside the UK when they died but formerly had a permanent home within the United Kingdom.
- Trusts: the deceased had assets in a trust worth over £150,000 or had more than one trust.
- There we assets worth more than £100,000 outside the United Kingdom.
- Gifts were made within 7 years before they died of over £150,000 after taking off the tax-free allowances.
- Gifts into trusts were made.
- The deceased benefited from a gift they had made, such as their house or car (this is called a ‘gift with reservation of benefit’.)
- Life insurance paid out to a third party other than spouse / civil partner and they had also bought an annuity.
- They had a personal pension from which they had not taken their full retirement benefits, and when they were terminally ill or in poor health they changed the death benefits payable on it to increase the value of the lump sum
- They owned – or were the beneficiary of – an ‘Alternatively Secured Pension’ or unsecured pension.
- They elected that property that they had given away should be part of their estate for Inheritance Tax, and not pay a ‘pre-owned asset’ charge
- They were ‘deemed domiciled’ in the UK – this usually applies if the deceased wasn’t born in the UK but had lived here for the last 17 years, or was born in the UK but died within three years of emigrating.
In any of these cases, the estate is not an excepted estate and you must fill in a full Inheritance Tax account (form IHT400). Definitely, a reason to seek our help in finding economical professional help – 03 300 102 300! The last time I checked, an IHT400 could be 96 pages long. Not for the faint-hearted!
Questions: When is probate needed?
Will National Savings insist on a grant of probate to cash in premium bonds?
As stated above, National Savings are particularly cautious about allowing deceased savers’ bonds or other savings to be released. See above
Do I need to get probate if there are no assets?
Do I need a grant of probate if I am the sole beneficiary?
It makes no difference if you are sole beneficiary, you may still require probate.
Will I require probate for a small estate?
Depending on the size of it and where the assets are held, you may not require probate – but it only takes one asset holder to insist, so keep careful records of the date of death balances of any assets (and liabilities) which are released without a grant, as often other assets (typically investments) are discovered years later and you will then need details of the assets dealt with many years before. An asset search is always prudent.
Do I need a grant of probate to sell my mother’s house?
The only ways you may avoid probate is if you were joint owner (as Joint Tenants) of the property and it semi-automatically passes to you. But there could still be issues, so check.
An alternative is to put the property in Trust, something which is usually done for the wrong reason, so contact me if this is something you are considering for my general Guide to Property Trusts.
Do I need probate if there is a will?
Whether you have a Will or not does not affect any requirement for probate
Is Probate needed if I have power of attorney?
An attorney’s authority ENDS when a person dies, so see the article on who can act as executor to avoid a potential financial and legal catastrophe for you if you try to act after the donor of the Power of Attorney has died. Sadly, many people do not realise this and place themselves in some potential danger in legal terms. In fact, they could be accused of theft at one extreme, at the other they might be lumbering themselves with the duties of the executor in certain circumstances, so attorneys be careful!
When don’t I need probate?
When all of the asset holders are willing to release everything to you – usually only the case for small estates, but it is perfectly possible for a large estate not to need a Grant, but may still have to complete Inheritance Tax forms or face the possibility of substantial penalties if you are later proved wrong. The most usual case is where everything is held in joint names as “Joint Tenants” that is each may in effect appear to own all of the asset in question. Confusingly “Tenants in Common” means that each co-owner only owns part of the asset, which means it is more likely that a grant will be required – it definitely will be if the asset is a house or land of any type.
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