When someone passes away, one of the first legal questions families ask is: Do we need probate?
The answer often depends not only on the size of the estate, but on the type of assets involved and how they were owned.
What Is Probate and When Is It Required?
Probate is the legal process of obtaining authority to deal with a deceased person’s estate.
- ✓ If there is a valid Will, the executors apply for a Grant of Probate.
- ✓ If there is no Will, administrators apply for Letters of Administration.
This legal authority allows the personal representatives to collect assets, pay debts, and distribute the estate.
Assets That Usually Require Probate
In general, probate is required when assets are held solely in the deceased’s name and do not automatically pass to someone else.
1. Property Owned Solely or as Tenants in Common
If the deceased owned a property in their sole name, probate will almost always be required before it can be sold or transferred.
Even where a property is owned jointly, probate may still be required if it was held as tenants in common (rather than joint tenants), because the deceased’s share forms part of their estate.
2. Bank Accounts Held in the Sole Name of the Deceased
Some banks will release small balances without probate (each bank has its own threshold), but larger balances usually require a Grant before funds can be accessed.
Each financial institution will have their own thresholds to decide whether or not they will require probate to release funds. If probate is required to release the funds, providing that there are sufficient funds in the account, most banks would still release money to pay for funeral costs or Inheritance Tax before the Grant is obtained.
3. Investments, Stocks and Shareholdings
Stocks, shares, investment portfolios, and certain bonds held solely in the deceased’s name generally require probate to transfer or sell. Some share registrars will have a ‘small estates service’ for low-value assets; however, this is not guaranteed and may require the estate to pay additional fees.
4. Business Interests and Private Company Shares
If the deceased owned a sole trader business or held shares in a private company, probate is usually required to deal with those interests.
5. High-Value Personal Assets
Valuable items such as jewellery, art collections, or vehicles owned solely by the deceased may require probate before they can be sold or transferred.
Assets That Usually Do Not Require Probate
Some assets pass automatically to a beneficiary and do not form part of the probate estate.
1. Jointly Owned Property (Joint Tenants)
Where property is owned as joint tenants, the deceased’s share passes automatically to the surviving owner under the right of survivorship.
No probate is required to transfer ownership, although the death must still be registered with the Land Registry.
2. Joint Bank Accounts
Funds in joint accounts typically pass automatically to the surviving account holder.
3. Life Insurance Policies Written in Trust
If a life insurance policy is written in trust, the payout goes directly to the named beneficiaries and does not require probate.
If it is not written in trust, probate may be required before payment is made.
4. Pension Death Benefits
Most pension schemes operate under a discretionary trust structure. This means death benefits are paid directly to nominated beneficiaries and do not usually require probate.
5. Assets with Named Beneficiaries
Certain financial products allow a nomination (for example, some savings accounts or investment products). Where a valid nomination exists, probate may not be required for that asset.
When Probate May Not Be Needed at All
In some cases, probate is not required for the estate as a whole. This may happen where:
- ✓ All assets were jointly owned
- ✓ The estate consists only of low-value bank accounts
- ✓ Assets pass entirely via trust arrangements
However, even small estates sometimes require probate if institutions insist on seeing a Grant before releasing funds.
Key Factors That Determine Whether Probate Is Required
Whether probate is needed depends on:
- ✓ How the asset was owned (solely or jointly)
- ✓ The value of the asset
- ✓ The policies of the bank or financial institution
- ✓ Whether a trust or nomination is in place
It is not simply about the total estate value.
The contents of this post do not constitute legal advice and are provided for general information purposes only ■
