Wills and probate

When is probate required?

Learn more about when probate is required, when probate is granted, and how probate works.

24 May 2022

Meeting with judges with gavel

In England and Wales, probate is usually required before the assets and possessions of a deceased person can be dealt with. Here, our experts run through what probate is, when probate is required, and in what situations an estate can be handled without a grant of probate.

What is probate?

Technically, ‘probate’ refers to the legal process whereby a deceased person’s will is ‘proved’ by the court. However, the term is more generally used to describe the process of dealing with the estate of someone who has died. This includes collecting in their assets, settling any debts, and distributing their estate in accordance with their will or, if there is no will, via the rules of intestacy.

When is probate required?

Probate is generally required when a person’s estate includes property or is made up of other significant assets. Probate may also be required when an estate is valued over a certain amount. The value at which probate is required will vary between banks and financial institutions. Some financial institutions may release £50,000 whereas other will not release more than £5,000.

Probate isn’t dependant on whether there is a valid will in place and may be required either way, as it’s dependant on the situation and the estate itself.

When is probate not needed?

Many people assume that probate is always needed for the assets of an estate to be distributed properly; however, there are several situations when probate is not required.

As previously mentioned, when the total value of the assets in an estate are below a certain amount, probate may not be required to release and distribute the assets. The Administration of Estate (Small Payments) Act 1965 sets out that estates under £5,000 in value may not require a grant of probate, but this threshold can be much higher for some financial institutions. The best way to check if probate is required is to contact the financial institutions the deceased used and ask if they require probate to deal with the assets.

Probate also generally isn’t required for joint assets, including joint bank accounts. When property is held with another person, as joint tenants, the property will simply pass to the surviving co-owner through the right of survivorship. However, when a property is owned under tenants in common, probate will usually be required.

How is probate granted?

For probate to be granted, it must be applied for by an eligible party. If there’s a valid will in place, probate is applied for by the named executor(s). If the deceased didn’t have a will, or the will is invalid, then a set of strict rules about who is entitled to apply for probate in these circumstances applies.

Before applying for probate, the estate must be valued and the correct inheritance tax form filled out and, if necessary, reported to HMRC. When probate is granted, you’ll receive either a ‘grant of probate’ document if there was a will in place, or ‘letters of administration’ if the deceased didn’t leave a will. You can then begin dealing with the estate administration.

Can probate be contested?

In some instances, probate might be complicated by one party contesting a will. This could be due to concerns of fraud, undue influence, or a claim for financial provision under the will.

What probate forms do I need?

Our specialist wills and probate lawyers at Slater and Gordon understand that applying for probate can be confusing, and the number of different forms involved can be overwhelming. In certain circumstances, you may be able to apply for probate online.

If these specific conditions are not met, you can apply via a postal application by submitting the PA1P form if there’s a will in place, and the PA1A form if there’s no will in place. To learn more about the forms involved when probate is required, or to seek expert legal advice throughout the process, contact our wills and probate lawyers online here.

Are probate records public?

Yes. Once a grant of probate has been issued, anyone can see the documents involved - including the will. Until this point, a will is a private document. This is the case for almost all estates, regardless of their value.

If you’re applying for a grant of probate or a grant of letters of administration and are looking for expert legal advice, our specialist wills and probate lawyers are here to help. Our legal experts can assist you with all aspects of the process, from applying for probate, to communicating with the beneficiaries and distributing according to the will.

Call us today on 0330 041 5869 or contact us and we'll call you.

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