Do I need to obtain Probate?

This is a question we get asked a lot. But before I answer this question, you need to know what Probate is.

So, what is Probate?

Probate is the legal word for describing the legal steps that have to be taken following someone dying. Broadly, this means collecting in the deceased person’s assets, paying their debts, and distributing the assets to the named beneficiaries. In order to do this, often the deceased person’s family will need to obtain a Grant of Probate.

This is a legal document which names the person who has legal authority to collect in the assets, pay the debts and distribute the estate.

How do I know whether or not I need to obtain a Grant of Probate?

Obtaining a Grant of Probate is often the rule, rather than the exception. Many people believe that if you have a Will, you don’t need a Grant of Probate which is wrong. Whether or not you need a Grant of Probate depends upon the assets of the deceased person’s estate.

The general rule is that a Grant of Probate is not required in the following circumstances:

1. Where all of the assets owned by the deceased were held jointly with another. The law of survivorship will ensure that the joint assets automatically pass to the surviving owner. Practically, all you need to do is to provide the death certificate to the asset holder who will remove the deceased person’s name from the account or title deeds.

Be aware that in relation to land, property can be held jointly in one of two ways. If the co-owners hold the property as joint tenants then the law of survivorship as described above applies.

However, if they hold the property jointly as tenants-in-common then the deceased’s share will not automatically pass to the co-owner under the law of survivorship and instead will pass to the beneficiaries named in the deceased’s will or in accordance with the intestacy provisions.

2. Where the collective assets of the deceased are small in value, for example, the bank accounts have a small amount of money in them. In this case, you will need to provide the bank with the death certificate and they will confirm whether the amount in the account is small enough to enable the account to be closed without a Grant of Probate. If so, they will provide you will a form which you will need to complete and potentially sign in front of a solicitor. The solicitor will charge you a small fee for doing so, usually in the region of £5.

If, however, the deceased owned property not held as joint tenants, a Grant of Probate will be required even if the bank account only has a small amount of money in it. You should ensure that you do not complete the form the bank gives you and instead provide the bank with the Grant of Probate in order to close the account down.

If you need more help in working out whether a Grant of Probate is required, then please don’t hesitate to contact either Samantha Downs or George Neal on 0116 262 8596 or samantha.downs@dodds-solicitors.co.uk or George.neal@dodds-solicitors.co.uk who will be happy to assist.