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Do I need probate?

05 August 2021 | Ben Coulson

When someone dies, it may be up to you to decide and organise their property, money and other possessions in a process called “probate”. To do this, you will need to get a ‘grant of representation’ to prove that you are authorised to administer the deceased’s estate. In what form this takes depend on whether a Will was left. 

  • Where someone has made a Will, you will need to apply for a ‘Grant of Probate’. 
  • Where there is no Will, you will need to apply for a ‘Grant of Letters of Administration’. 

You may not need Probate or Letters of Administration if: 

  • The estate is just made up of personal possessions such as a car, furniture, and jewellery. 
  • All the property in the estate is owned as joint tenants. This property automatically becomes wholly owned by the other owner. 
  • Everything is in a joint bank account. 
  • The estate is insolvent, namely there is not enough money in the estate to pay all the debts, taxes and expenses. 
  • There are certain life insurance policies and pension benefits in the estate. 

Some banks and building societies will release large amounts of money without needing to see a Grant of Probate or Letters of Administration. However, this will depend on the policies of the bank or building society. They do not have to release anything, however small the amount of money. 

There are others that will only release money needed to pay for a funeral or inheritance tax but nothing else until you have been granted Probate or Letters of Administration. 

Does everyone need to use probate? 

The simple answer is no. Many estates do not need to go through this process.  

If there is a jointly owned property and money involved that passes to a spouse or civil partner when someone dies, probate is usually not needed. 

It is common to need to apply for Probate or Letters of Administration where some or all of the following applies: 

  • There is more than £5000 in bank and building society accounts 
  • There are properties that need to be sold or transferred 
  • There are stocks and shares 
  • There is a business 

So, what about jointly owned property? 

There are two different ways of jointly owning a home: 

Beneficial joint tenants – this means that the surviving owner will automatically inherit the other owner’s share of the property. There will be no need to apply for Probate or Letters of Administration to transfer the property.  

Tenants in common – this means that the surviving owner does not automatically inherit the other owner’s share of the property. It is possible to transfer the property without getting Probate or Letters of Administration if another person is appointed as trustee to sign the transfer papers.  

However, it is important to check whether there are any other assets that might need Probate or Letters of Administration before doing this, as it will be needed so that the personal representative can pass it whoever will inherit the share of the property, according to the Will or the rules of intestacy. 

Do I need a solicitor to help with probate? 

If you have been appointed as an executor under a will, it can be daunting to know how much help and advice you will need. As the probate process can get quite technical and tricky it is worth obtaining legal advice early on. 

A solicitor will be able to help you should:  

  • The will of the person who has died is not clear 
  • There be young children involved 
  • The person who has died owned a business 
  • There be a trust in the will  
  • There be assets held abroad  
  • There be a dispute about how the estate should be handled 
  • There be inheritance tax to pay 

How will fees be paid? 

The general rule is that fees are paid from the estate, so you should not be out of pocket. However, it is important to understand how the estate will be charged. Some common methods are set out below.  

Hourly rates – This is the ‘traditional’ method of charging.  We advise you of our hourly rate at the outset and charge this for all work carried out on your behalf.  You will be charged for all work spent on your file and although we will provide a guideline of what the overall fees will be, we will not be able to guarantee your costs.  

Agreed fees – This is where we agree a fee at the outset of the matter.  This provides you with complete certainty as to our fees for carrying out the agreed work.  We will agree the scope of the work at the outset and explain what is and is not covered by this fee.  If the costs exceed this fee this is our risk and not yours. However, if it takes less time to carry out the work than expected the agreed fee remains.  This may mean that you end up paying more than you would have under an hourly billing arrangement.  We will not record time for the purpose of billing in relation to this matter and we will not be able to provide this information to you. 

What about payments to third parties?  

Payments to third parties are known as ‘disbursements’ and can include payments made on your behalf e.g., for such items as Court fees. 

Specialist Probate & Estate Administration Solicitors 

If you would like advice about the estate of a family member or friend who has died with or without making a Will, please contact our friendly team of probate and estate administration solicitors. With many years’ experience, our experts are best placed to provide technical legal advice and help navigate you through the process. Please get in touch by calling 0117 906 9400 or email hello@gl.law 

The contents of this article are intended for general information purposes only and shall not be deemed to be, or constitute legal advice. We cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this article.

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