Whether a grant of probate is needed depends on how the estate is owned. If your spouse or civil partner passes away and leaves solely owned assets, probate may be required. If you had jointly owned property and bank accounts, probate might not be necessary.
In this article, we discuss the scenarios upon which probate may or may not be required when dealing with your spouse’s assets. This includes sole ownership assets, assets over a certain amount, and tenants in common vs joint ownership.
When Do You Need Probate If Your Spouse Dies?
What is probate? Probate is the legal process upon which someone is authorised to administer an estate.
There are several instances whereby you might need to apply for probate when your spouse has passed away.
The first thing you’ll need to do is make a list of any assets that they owned. This includes property, bank and building society accounts, shares, insurance policies, and pensions.
Read more on how long does probate take
Sole Ownership Assets
Sole ownership refers to assets that one individual entirely owns in their name. Any income or capital gains from these assets belong to that person. Similarly, any debts associated with those assets including a mortgage, will be liable to the estate.
If the deceased spouse did not leave a will, the estate will be distributed according to the rules of intestacy. As the surviving spouse, you are typically first in line to inherit under these rules. You will still need to get a grant of representation to prove that you are responsible for managing and even distributing these assets.
Some of these assets include:
Property
Bank and Building Society accounts
Shares
Life insurance (if no named beneficiary)
Pensions (if no named beneficiary)
Assets Over a Certain Amount
If your spouse held any assets that were solely owned and valued over a specific amount, then probate will likely be required. The amount required for probate will depend on the amount the institution has set, as they each have different thresholds.
For example, Barclays requires probate when the amount is greater than £50,000. For AXA Insurance policies it is over £10,000. It is worth checking with the individual institution what their threshold is.
Additional Solely Owned Assets Over £10,000
Your spouse may have owned other assets in their name, including property and personal items like jewellery and artwork. Whether probate is required for these assets depends on whether there is a will.
Property and Land Deeds
You will likely need probate if the property was not left to you in a will or if there is no will. Probate will facilitate the transfer of title and ownership.
Personal Belongings
In general, probate is not required for personal belongings. But, if you are not named in the will for certain items, or if no will exists, the rules of intestacy usually stipulate that personal possessions will pass to you as the surviving spouse.
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When Do You Not Need Probate If Your Spouse Dies?
Probate is often not required if:
There are joint assets held within the estate
The right of survivorship applies to an asset
You are down as a named beneficiary
Examples Where Probate Is Not Required
Bank Accounts
Joint bank accounts automatically transfer to the surviving partner. This applies due to the right of survivorship.
Property
The property automatically transfers to you the ‘surviving owner’. This only applies to those under joint ownership (joint tenants).
Pensions
If you are the named beneficiary on your spouse's pension, you may be able to claim directly. But, you should check with the specific pension provider. Tax implications might also apply.
Life Insurance
Most life insurance providers can pay out to the nominated beneficiary upon receiving a copy of the death certificate. Especially if the amount is below a certain threshold.
(e.g., AXA may pay out up to £10,000 without the need for probate).
Savings and Investments
Jointly owned savings and investments will transfer fully to the surviving spouse. Giving them complete ownership of the accounts. This applies to those with the right of survivorship. These are one of the key instances when you don't need probate.
Estate Doesn’t Reach Threshold
If your spouse's total estate does not exceed a certain value, probate may not be required. Generally, if the total value of the estate is £5,000 or less, probate is often not needed, regardless of whether the assets are solely owned or jointly held. This threshold can vary depending on the policies of individual financial institutions as well as the nation.
In England, Wales and Scotland, many banks and financial institutions' thresholds range from £5,000 to £50,000 or more. Below this, they may release funds without requiring probate.
In Northern Ireland, some institutions may set a higher threshold, such as £10,000, before requiring probate.
In some instances, institutions will release funds to pay for things such as funeral costs, inheritance tax and probate itself. Anything more will require the grant of representation.
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Joint Ownership vs Tenants in Common
The need for probate to determine property ownership will depend on whether the ownership was joint ownership or tenants in common.
Joint Ownership
All owners, no matter how many, have a 100% share of the property. Their share will be distributed in their death through the ‘right of survivorship’ and cannot be left in their will.
If you co-owned your property with only your late spouse under this agreement, you now solely own the property as the surviving joint owner.
Tenants in Common
With tenants in common, the deceased’s share doesn't automatically go to the other owners but they can leave it in their will and form part of their estate.
As a married couple, it is rare to have this agreement in place. It is more common if you are unmarried or even between friends. If you do have this agreement there is a good chance you will inherit their share. Specifically, if your spouse left their share to you in their will. If this is the case then probate would be required to help ensure that you receive their share of the property as per their wishes.
Should you not know the kind of agreement you have in place, you can always check the land registry for more information.
Read more on Tenants in Common or Joint Tenants?
What About Any Debts Owed?
Joint Debts
If your spouse had any debts with you, you will remain responsible for those debts. Probate will not be required as your name is on the debt.
Sole Debts
If your spouse had any debts in their name, you won’t be responsible for these debts as the estate would be. But you might need to access assets in their name to cover these debts, so probate will be required.
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How to Choose a Probate Solicitor
If you need to go through the probate process, it is worth getting legal advice to help you through it. You’ll need to have all your spouse's relevant documentation for their financial affairs. This will help keep the process smooth and generally trouble-free.
Simply fill in our form and you’ll get up to 6 free quotes from trusted and professional probate solicitors. Once you are matched with the solicitors, it's up to you to choose which company you want to use.
Each company we work with is regulated by one of the following, depending on their location:
Solicitors Regulation Authority (SRA)
Law Society of Scotland (LSS)
Law Society of Northern Ireland (LSNI)
Council for Licensed Conveyancers (CLC)
Institute of Chartered Accountants (ICAEW)
The cost of using a solicitor for probate varies depending on the size of the estate. Some solicitors use a fixed fee method which can be between £1,000 - £5,000 for an average estate. Whilst many others will take 1-5% of the estate value. Using our form means you may be able to save on costs, as probate solicitors compete to help you.
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