When is probate needed ?

As solicitors we are often contacted when someone has died to advise whether it is necessary to apply for a grant of probate.
The first thing to do is to register the death with the registrar of births, deaths and marriages in the area where the person has died. To do this you will need to obtain a medical certificate of the cause of death from the doctor who has certified the person’s cause of death (unless there is a coroner’s inquest which is a more lengthy procedure). Once you have the medical certificate you can arrange an appointment with the registrar, who will need to see the medical certificate. At the same time, a green form will be given you, which you should take to the funeral directors to enable them to make the necessary arrangements. Once the funeral is arranged, it will become necessary to turn your thoughts to dealing with the person’s assets.
Any jointly-owned assets – such as a joint bank account or jointly-owned home (held as “joint tenants”) – will automatically belong to the surviving joint owner. There is no need to obtain probate to enable those assets to pass to the joint owner because they pass by survivorship and not according to the deceased person’s will or the intestacy rules if he has died without a will. Many married couples own their home jointly and only have accounts in their joint names, so, in those cases, probate is often not needed when the first of them dies. The only thing to do is to send the death certificate to the bank or building society and, if there is a jointly owned home, to register the death certificate with HM Land Registry. In both cases it will normally result in the deceased person’s name being taken off the account or register of title, leaving it in the sole ownership of the surviving joint owner.
When the surviving joint owner dies, however, if he or she owns the home in his or her sole name, then it will be necessary to obtain probate to enable the property to be either sold or transferred to a beneficiary.
If there are any bank or building society accounts, shares or other investments in a deceased person’s sole name, it will depend on how much money is involved as to whether probate is required to enable the funds to be withdrawn. In law, probate is not required if the deceased person only left up to £5,000. Many of the banks and building societies, however, have much higher limit. Many high street banks will allow the personal representatives of the deceased (i.e. the executors named in the will or the person(s) entitled to the estate if he died without a will) to withdraw funds if they do not exceed £60,000. Some have lower limits – for example, the Nationwide Building Society’s limit is £30,000.
Once you have registered the death you should give the death certificate to each financial institution in which the deceased person had money, and they will advise you as whether or not probate is needed.
If probate is needed it will involve making an application to the probate registry. The complexity of this depends on the nature and size of the deceased person’s assets. If inheritance tax is payable or the estate is more complicated – for example, if the deceased person had a property abroad – then obtaining probate will also involve submitting an inheritance tax return to HM Revenue & Customs and arranging payment of any inheritance tax before you can apply for probate.
If you need advice following the death of someone, please contact Dixon Stewart Solicitors.

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