Wills & Inheritance Protection

When is a Grant of Probate required?

9th August 2023 Tom Couch

The word ‘Probate’ is often used to refer to the entire process of administering a deceased’s estate. The generic name for people doing this job is ‘Personal Representatives’. There are two types: ‘Executors’ and ‘Administrators’. If the deceased has left a Will, it will name someone that they’ve chosen to administer their estate. This person is known as an ‘Executor’. If the deceased has not made a Will, the Intestacy Rules (rules which set out the order of entitlement in the absence of a Will) will dictate who is entitled to administer an estate. They are known as ‘Administrators’. Both Executors and Administrators need proof that they are entitled to act, and this is obtained by an application to the Probate Registry for a ‘Grant of Representation’.

What is a Grant of Representation?

A Grant of Representation is a generic term for the legal document issued by the Probate Registry to the Executors or Administrators in the estate of a deceased person which confirms that they have the authority to deal with their estate. Executors get a ‘Grant of Probate’; Administrators get a ‘Grant of Letters of Administration’.

Whilst the application process to obtain a Grant of Letters of Administration is similar to that for Probate, it is slightly more complex. Therefore, if the deceased has not left a Will, we recommend that you seek legal advice before doing anything, as the Intestacy Rules will set out who can act as Administrator and how the estate will be split up.

When is Grant of Probate required?

A Grant of Probate is required to prove the authority of those entitled to act as Executors and administer the estate. This proof establishes their title to the assts of the estate, and so enabling them to:

  1. Collect in all the assets of the deceased.
  2. Pay the liabilities of the deceased.
  3. Distribute the balance of the deceased’s estate according to their Will.

Most institutions will not release the assets to the Executors without seeing proof of their title, in either the form of the Grant of Probate or a copy of it, bearing the court’s seal. A Grant of Probate is usually required to deal with stocks and shares, for example, and for transactions involving land (whether solely owned, or as tenants in common).

Assets that can be realised without a Grant of Probate

Assets which the Executors may administer without first obtaining a Grant of Probate include:

Assets which have a maximum value of £5,000.00

While the institution holding the asset can exercise its discretion to release greater sums without seeing a Grant of Probate, assets with a maximum value of £5,000.00 each can be paid out without a Grant of Probate under the Administration of Estates (Small Payments) Act 1965.

Personal and household property

Executors can often realise a deceased’s personal and household belongings by selling them, without having a Grant of Probate. A Grant of Probate may be required if the property is held in a safe deposit box.

Cash

Cash is often found amongst the deceased’s possessions at their home. Executors do not need a Grant of Probate to take custody of this money.

Assets which do not pass to the Executors

When a person dies, their interest in, or ownership of, certain assets pass automatically to another person, not their Executors. Assets where the ownership passes in this way are:

Assets which are jointly owned assets.

Each owner has an indivisible share in the asset, and each has an equal right to the whole asset. When one of the owners dies, their interest in the asset passes automatically to the surviving owner by the operation of the principle of survivorship, regardless of the terms of the other owner’s Will.

For example:

  • Jointly owned property.
  • Joint bank or building society accounts.

Nominated assets

Nominated assets are assets that an individual owns but which they can dispose of, not by their will, but by naming or ‘nominating’ another individual who should receive the assets when they die.

Gifts made in anticipation of death

These gifts, called donatio mortis causa, are gifts that an individual makes immediately before death. There are conditions which must exist for a gift to qualify as a donatio mortis causa.

Do I need a Grant of Probate if my husband/wife/civil partner dies?

An answer to this question depends entirely on how the deceased’s assets were owned.

Many couples own their home as joint tenants and have joint bank accounts, suggesting on first glance that Grant of Probate is not required. However, Grant of Probate could still be required to realise any large assets which were owned in the deceased’s sole name, or a property owned as tenants in common.