Misconceptions of Probate

Many people often ask “Why do you need probate if you have a Will?”

The simple answer is that a Will simply instructs your “executors” as to what to do with your assets. What it does not do is tell the outside world that you necessarily have the legal authority to step into the shoes of the deceased and to collect their assets or enter into agreements on behalf of their Estate.

That is the role of the “Grant of Representation”, obtained by going through the probate process. A Grant is an order from the court giving executors authority to deal with the assets in an estate. However, many financial institutions will not require sight of a Grant before releasing assets if they are below a certain level. In recent years, that has been £30,000 but since the pandemic some banks have increased this to £50,000.

Therefore, if the deceased has money in a bank or shares which exceed the level used by the bank or company registrar, a Grant will be needed. However, if the deceased holds any assets, including a house, jointly with another person, the legal title passes automatically on death to the survivor, regardless of the value or sum involved. A death certificate will be required to transfer that asset into the sole name of the survivor.

If you have a Will, your executors can apply for a Grant of Probate. However, if there is no Will or no executors willing to act, the same process applies resulting in a Grant of “Letters of Administration”. Whichever is obtained allows third parties to deal with the person obtaining the Grant as if they were the deceased. Without such a Grant, it may not be possible for a person to carry out the work necessary to administer the estate of a deceased person regardless of what the Will states. It is therefore an important document which may be needed to allow the deceased’s wishes to be put into effect.

For further information please contact our Private Client team.

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