When someone dies, one of the first questions their family asks is whether probate is required. Many people assume that the existence of a will automatically removes the need for probate, but this is not necessarily the case. In reality, the presence of a valid will and the requirement for probate are separate issues. A will sets out how a person wishes their estate to be distributed, while probate is the legal authority needed to carry out those wishes. Probate is often still necessary, even if the deceased left a clear and valid will. Whether it is required depends on the size of the estate, the nature of the assets, and how those assets are held. Understanding when probate is needed helps families administer estates correctly and avoid delays or legal complications.
Probate is the legal process that confirms a will is valid and authorises the executors to administer the estate. The grant of probate is the formal document issued by the probate registry that proves the executor's right to act. Once probate has been granted, executors can collect assets, close bank accounts, pay debts, settle inheritance tax and distribute the estate in accordance with the will.
Without probate, many organisations, including banks, building societies and the Land Registry, will not release or transfer assets. When there is no will, the equivalent process is known as applying for letters of administration, and the person dealing with the estate is known as an administrator. Although the terminology is different, the purpose of the process is broadly the same.
Our private client solicitor, Louise Docherty, notes:
‘Families often assume that having a will automatically removes the need for probate, but that is rarely the case. Probate provides the legal authority executors need to access assets, settle liabilities and ensure the estate is administered correctly. Without it, even straightforward estates can face unnecessary delays or complications.’
Many people believe that having a will means probate is not required. However, a will does not itself give authority to deal with the estate. It simply identifies the executors and sets out who should inherit. For the executors to act legally, they usually still need to obtain the grant of probate.
Probate is not avoided simply because a will exists. Probate becomes unnecessary only when all assets pass automatically to someone else or fall below thresholds set by financial institutions. Jointly owned assets, such as joint bank accounts or property owned as joint tenants, typically pass automatically to the surviving owner and do not require probate for that transfer to take place. Outside of these situations, probate is commonly necessary.
Probate is usually required when the deceased owned assets solely in their own name. This includes property, land, bank accounts, investments and other financial assets that are not jointly owned or held in trust. Financial institutions each set their own limits for releasing funds without probate. Some may release small balances, but larger amounts almost always require a grant.
If the estate includes a property held solely by the deceased, probate will almost always be required. The Land Registry will not transfer ownership of such property without a grant of probate or letters of administration. Even if the estate consists of a mixture of assets, a single asset of sufficient size can trigger the need for probate.
Probate may not be necessary where assets are minimal or held jointly. Many banks release funds from small accounts upon seeing a copy of the death certificate and will, without insisting on probate. There is no universal threshold, but institutions generally set limits ranging from a few thousand pounds up to around fifty thousand pounds.
If all assets pass automatically to a surviving spouse or co-owner through the rules of survivorship, probate may not be required for those specific assets. The will still applies to any assets held solely by the deceased, but where such assets do not exist, the estate can often be administered without a grant.
Assets held in trust do not require probate, as they are legally owned by the trustees rather than forming part of the deceased's estate. Life insurance policies written in trust also fall into this category.
Even in estates where probate is not required, executors still have legal responsibilities. They must ensure debts are paid, confirm the value of the estate and arrange for distribution in accordance with the will. They must also confirm whether inheritance tax is payable. Errors or omissions in these tasks can expose executors to personal liability.
Applying for probate provides a formal legal structure for dealing with the estate. It reassures third parties that the executor has the authority to act and offers a layer of protection, particularly where the estate is more complex. The application involves submitting the original will, the death certificate and detailed information about the estate's assets and liabilities. Where inheritance tax applies, executors must complete the appropriate HMRC forms before probate is issued.
The requirement for probate is separate from the requirement to pay inheritance tax. Even if probate is not necessary, inheritance tax may still be due. Executors must report the value of the estate to HMRC and settle any tax owed before distributing assets. The existence of a will does not change tax liability. What matters is the nature of the estate and who benefits.
For example, estates left to a surviving spouse or civil partner are generally exempt from inheritance tax, while estates left to children or others may attract tax above the available allowances. In many cases, executors cannot move forward with probate until HMRC confirms that the correct tax has been calculated and paid.
Attempting to administer an estate without probate can lead to significant problems if probate is actually required. Financial institutions may refuse to release funds, preventing access to assets. Executors who act without proper authority risk personal liability, especially if debts or tax remain unpaid or if distributions are made incorrectly.
Selling or transferring property without a grant of probate can cause immediate legal barriers. Buyers will not proceed, and the Land Registry will reject an application to transfer ownership. Delays caused by these issues can create stress for families and increase costs.
The will and probate process work together to ensure the estate is administered correctly. The will provides the instructions and sets out the beneficiaries, while probate gives the legal authority to carry those instructions out. Without probate, the will alone is not enough for executors to perform their duties.
In cases where there is no will, the estate is administered under the intestacy rules. Letters of administration are required, and the distribution follows a strict legal order rather than personal wishes. Even though this process differs from probate, the legal authority granted serves the same purpose: giving someone the right to administer the estate.
The existence of a will does not determine whether probate is required. Probate is still necessary in many cases, particularly where the estate includes property or substantial financial assets. In smaller estates or where all assets pass automatically to a joint owner, probate may not be needed. Executors must carefully assess the nature of the estate before acting and should obtain legal advice if there is any uncertainty.
Obtaining probate provides legal authority, protects executors, and ensures the estate is handled correctly. Although the process can seem daunting, it is an essential safeguard that supports the smooth and lawful administration of the estate.
At Premier Solicitors, we recognise that navigating probate can feel overwhelming, especially during a period of grief. Our experienced team provides clear, practical advice on whether probate is needed and can manage the entire application and estate administration process on your behalf.
We act for executors, administrators and families, ensuring estates are administered efficiently, accurately and in accordance with the will. From dealing with financial institutions to liaising with HMRC and preparing estate accounts, we guide you through each step with professionalism and care.
Contact Premier Solicitors today for expert advice on probate, and all aspects of estate planning and administration. Please call us on 01234 358 080 or visit our contact page to send an enquiry form.
Read more blog posts which Louise has written for this website.
