Do I need to apply for Probate?

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Do I need probate

It is not always necessary to obtain probate of a will.

It is not always necessary to apply for probate.  If you are named as the executor of a will, you may have to apply for probate when the person who made the will dies.  That will depend largely on what assets there are in the estate.

What is Probate?

Probate is often referred to as the process of administering a will.  In fact, it is the court order which gives the executors the legal authority to then deal with the estate.  Each legal jurisdiction will have its own process and rules for applying for probate.

Why do Executors need Probate?

Probate is the legal proof of who is entitled to administer the estate (will) of a deceased person.  Without this, banks and so on will not release funds as they may be paying out to the wrong person.

What happens if Executors do not get Probate?

If executors do not get probate, assets will not be able to be released and the estate will remain in limbo.

When is Probate not needed?

Probate is not needed where assets pass automatically (outside of the will), or where there are limited assets (see below).

What is the threshold for Probate?

Generally, estates with assets of less than £5,000 in total will not need to have probate.

Do I need Probate for joint assets?

Joint assets generally pass automatically to the surviving joint owner(s) by a legal process called the ‘right of survivorship’.  They pass automatically on death and ahead of the terms of any will.  Probate is not therefore needed to deal with assets held jointly.

Do I need Probate for a Joint Tenancy?

Property owned jointly in England & Wales is held in one of two ways:-

  • Joint tenancy; or
  • Tenancy in common

A joint tenancy will pass automatically by the right of survivorship and NOT via the terms of a will.  Probate is not therefore needed for property held as joint tenants.

However, property held under a tenancy in common will require probate to allow the transfer of the share of property.

Why do Banks ask for Probate?

Banks will generally ask for probate before releasing the deceased’s funds and closing accounts.  They require probate as proof that the executors are the persons entitled to the funds.  If they (a bank) paid out with probate, and it turned out to be the incorrect parties then they would potentially be liable to pay the estate in due course too once probate was granted.

Probate gives executors the legal authority to deal with an estate.

How do you avoid Probate?

The easiest way to avoid probate is to ensure that your assets are held jointly.  This will often suit couples who have shared finances, but beyond that this is unlikely to be a realistic route to avoiding probate.

Can I deal with Probate myself?

Yes!  You do not have to have a solicitor help you – it can all be done directly with the Probate Registry.

Do I pay Inheritance Tax before Probate?

Unfortunately – yes!  Inheritance Tax is payable before probate is granted.  It is possible to delay payment of tax attributable to property.

Is Probate the same as Inheritance Tax?

Inheritance Tax (IHT) is payable on those assets which comprise our estate at the date of death.  In simple terms it is paid at 40% against the total estate, less any allowances applicable at the time.  IHT is payable whether probate is needed or not.

Probate is the court order granting executors the authority to deal with the estate – eg realise assets and so on.  So, no – probate and IHT are two different things (albeit related).

How much does Probate cost?

At the time of writing, probate fees are £273 for estates valued at over £5,000.  There is no court fee payable if the estate value is below £5,000.

How many Probate Certificates do I need?

You can obtain extra copies of the Grant of Probate at £1.50 per copy.  These are the working documents that executors send to banks and so on.  It is good practice therefore to get as many copies as there are assets, with a couple more for spare.  This allows executors to quickly exhibit probate with all asset holders as soon as probate is granted – rather than sending just one copy obtained from one bank to the next!

Do all Executors have to apply for Probate?

No.  If you appointed as an executor you do not have to do it.  You can either ‘renounce’ which means you have nothing at all to do with the estate.  Or, you can have ‘power reserved’ which means you can step in at a later stage if you are needed for some reason.

What is Intermeddling in an Estate?

Intermeddling is where an executor plays an active part in the administration of the estate.  It is significant because once an executor has ‘intermeddled’ they can not then renounce probate.  They must either take the grant of probate, or, the most they can then do is have ‘power reserved’ to them.

Need more help?

If you need more help with the subjects covered here then do reach out to our expert online wills and probate law solicitors.  You can email us at or call 03300 020 365.

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