Does it Need to go to Probate?

Many people are confused by this question. Some catch onto a few key words from other people’s scenarios often resulting in incorrect conclusions that no, it does not need to go to Probate. Let’s demystify this question using fictional characters in simplified scenarios breaking down how to decide correctly if Probate is needed or not.

What is Probate?

Some people think Probate only applies when Uncle Joe had a Will. Probate has nothing to do with whether or not Uncle Joe had a Will. Instead, it is a legal process where someone applies to the Probate Registry for a Grant of Representation authorising her to deal with Uncle Joe’s assets (houses, bank accounts, cars, etc) and liabilities (payments outstanding when Uncle Joe died, income or inheritance tax, etc).

• If Uncle Joe had a Will in which he appointed Postman Pat as his Executor, the Grant of Representation that Postman Pat would apply for is a Grant of Probate. Postman Pat would be appointed as the Executor.
• If Uncle Joe did not have a Will and Mary Poppins is the only or one of the persons entitled to inherit from Uncle Joe in accordance with the set order under the rules of intestacy (see our article on What Happens If There's No Will?), the Grant of Representation that she would apply for is Letters of Administration. Mary Poppins would be appointed as the Administrator.

Does Uncle Joe’s estate need to go to Probate?

1. Uncle Joe and Aunt Sally were married (or civil partners or just cohabitating); they had joint bank accounts; the house is in their joint names as joint tenants; and Uncle Joe’s Will leaves everything to Aunt Sally.

• Generally, what a surviving spouse or civil partner (but not cohabitee) inherits from their late spouse or civil partner is inherited free of inheritance tax.
• Joint bank accounts pass to the surviving joint account holder regardless of what Uncle Joe’s Will says about them. When the bank is informed of Uncle Joe’s passing, the accounts will be changed to sole accounts in Aunt Sally’s name in terms of the rules of survivorship and not succession (inheritance).
• To update the title for the house in this scenario, HM Land Registry only require Uncle Joe’s death certificate and Aunt Sally would become the sole owner in terms of the rules of survivorship and not succession (inheritance).
• In this scenario, Uncle Joe’s estate does not need to go to Probate.

2. Uncle Joe and Aunt Sally were not married (or civil partners); they had one child together (Super Sonic); Uncle Joe had one child from his previous marriage (Paddington Bear); Aunty Sally had one child from her previous marriage (Peter Rabbit); and Uncle Joe had two children from an extra marital affair whilst he was with Aunt Sally (Peppa Pig and Danger Mouse); Uncle Joe and Aunt Sally had joint bank accounts; and their house is in their joint names as joint tenants.

• Aunt Sally is not a surviving spouse or civil partner. She will not inherit anything from Uncle Joe’s estate.
• The house will pass to Aunt Sally as a joint owner in terms of the rules of survivorship and not as a beneficiary of his estate.
• Peter Rabbit is not Uncle Joe’s biological child so he will not inherit anything from Uncle Joe’s estate.
• The only people who will inherit from Uncle Joe’s estate are Super Sonic, Paddington Bear, Peppa Pig, and Danger Mouse. They can all apply to be the Administrators of Uncle Joe’s estate (the maximum is four people whether it’s for a Grant of Probate or Letters of Administration) or decide among them who’s going to apply.
• To update the title for the house in this scenario, HM Land Registry only require Uncle Joe’s death certificate and Aunt Sally would become the sole owner in terms of the rules of survivorship and not succession (inheritance).
• If Uncle Joe’s estate value exceeds £500,000, inheritance tax would be payable on the excess. Although Aunt Sally received Uncle Joe’s share of the house by survivorship and not succession (inheritance), she might still be liable for part of the inheritance tax. If inheritance tax is not paid within 6 months from Uncle Joe’s death, interest will start accruing on it.
• In this scenario, Uncle Joe’s estate needs to go to Probate.

3. Mum and Dad were married. They had two children, Horrid Henry and Super Ted. Their house was in their joint names as tenants in common. Dad died first and in his Will, he appointed Mum as the only executor and trustee and everything passed to Mum, but nothing was done when Dad died. Mum has now died and in her Will, she appointed Super Ted as the only executor and trustee. Horrid Henry wants Mum and Dad’s house to be sold immediately so that he can get his share of it.

• Super Ted and Horrid Henry can sell the house but they will not be able to complete on that sale without a Grant of Representation authorising them to deal with Mum’s half share of the house and Dad’s half share of the house. Both estates therefore have to go to Probate.
• Super Ted is the only one who can apply for a Grant of Probate in Mum’s estate in accordance with her Will.
• Super Ted or Horrid Henry or both of them can apply for Letters of Administration in Dad’s estate. This is because the Executor in Dad’s Will is now deceased. The same would apply if Mum had died before Dad and Dad hadn’t changed his Will to appoint a new Executor.

The above three scenarios are a few several that show that there is no “one size fits all” answer to the question “Does it Need to go to Probate”. If Probate is not done correctly, it can cost a lot of money in things like interest on inheritance tax and to get someone to correct it. It is therefore advisable to seek professional assistance from the beginning so that you get it right the first time.

Not Sure Whether You Need Probate?

Every estate is different, and understanding whether probate is required is not always straightforward.

At Martin Tolhurst Solicitors, our Wills and Probate team can help you understand the process, establish what steps may be necessary and guide you through administering an estate.

Find out more about our Probate services or contact our team to discuss your circumstances.