Do I need Probate if there is a Will?
One of the most common questions families ask after losing a loved one is: “Do I need Probate if there is a Will?”
Many people assume that having a valid Will means probate is not required. However, this is not always the case. While a Will names the person responsible for administering the estate (known as the Executor), probate may still be needed before assets can be collected, sold or distributed to beneficiaries.
In this blog, we’ll explain what probate is, when it’s required, and what happens if someone dies with a Will but Probate is not obtained.
What is Probate?
Probate is the legal process of administering a person’s estate after they die. Where there is a valid Will, the Executors named in the Will will usually apply for a Grant of Probate, which gives them the legal authority to deal with the deceased’s assets and carry out their wishes. This process typically involves valuing the estate, identifying assets and liabilities, paying any outstanding debts, calculating and settling any inheritance tax due, collecting the estate’s assets, and distributing them to the beneficiaries.
Does having a Will mean Probate isn’t needed?
Having a Will does not necessarily mean probate will not be required. While a Will sets out who should inherit your estate and who will administer it, it does not automatically give Executors access to your assets. In many cases, banks, building societies, investment providers, share registrars and HM Land Registry will require a Grant of Probate before releasing funds or transferring ownership. As a result, many estates still need to go through the probate process, even where a valid Will is in place.
When is Probate usually required?
Probate is commonly required when the deceased owned assets solely in their name, such as:
- Property – If a house or property was owned solely by the deceased, a Grant of Probate will usually be needed before the property can be sold or transferred.
- Bank Accounts – Financial institutions often have thresholds above which they require probate before releasing funds.
- Investments and Shares – Investment portfolios, shareholdings and premium bonds may require probate before they can be accessed or transferred.
- Significant Estate Values – Larger estates typically require probate due to the value and complexity of the assets involved.
When might Probate not be required?
In some situations, probate may not be necessary.
- Jointly Owned Property – If the property was owned as joint tenants, ownership will usually pass automatically to the surviving owner through the right of survivorship.
- Joint Bank Accounts – Funds held in a joint bank account generally pass automatically to the surviving account holder.
- Small Estates – Some banks and financial institutions may release smaller balances without requiring probate, although each provider has its own rules and thresholds.
How can I tell if Probate is needed?
Whether probate is needed will depend on the assets in the estate, how they were owned, their value, and the requirements of the financial institutions involved. Determining this can often be complex, particularly at an emotional and difficult time. Seeking professional legal advice can help establish whether a Grant of Probate is required and ensure the estate is administered correctly.
What happens if you don’t apply for Probate?
If probate is required but an Executor does not apply for it, they may be unable to sell property, close bank accounts, access investments, collect funds belonging to the estate, or distribute assets to beneficiaries. This can lead to significant delays in administering the estate and cause unnecessary stress and frustration for family members awaiting its finalisation.
How long does Probate take?
The length of time probate takes can vary depending on several factors, including the size and complexity of the estate, whether inheritance tax is payable, how quickly financial institutions respond to requests for information, and whether there are any disputes between beneficiaries. While some estates can be administered relatively straightforwardly, more complex estates often take longer to finalise.
What if there is no Will?
If someone dies without a valid Will, different rules apply.
Rather than applying for a Grant of Probate, the person administering the estate may need to apply for Letters of Administration.
The estate will then be distributed according to the rules of intestacy, which determines who inherits.
How OMM Solicitors can help
Administering an estate can feel overwhelming, particularly when you’re dealing with a bereavement. Understanding whether probate is needed is often the first hurdle for Executors and family members.
Our experienced Private Client team can guide you through every stage of the process, from establishing whether probate is required to obtaining the Grant of Probate and administering the estate on your behalf.
Whether you’re an Executor seeking advice or a family member trying to understand your responsibilities, we’re here to help. Speak to the team today on 01525 378177 or email info@ommlaw.co.uk.
