Do I need probate?

The common belief is that probate depends on the value of the estate. It does not, directly. It depends on how the assets were owned and on the policy of whoever is holding them. A modest estate with a solely-owned house needs probate; a much larger estate held entirely jointly between spouses often does not.

Step by step

1. List every asset and how it was owned.Property, bank and savings accounts, ISAs, premium bonds, shares, pensions, life policies and vehicles — and for each one, whether it was in the deceased's sole name, held jointly, or held in trust.
2. Identify what passes automatically.Assets held as beneficial joint tenants — most commonly a home owned jointly by a couple and joint bank accounts — pass to the surviving owner by survivorship and are outside the probate process. Check the property title: joint tenants pass automatically, tenants in common do not.
3. Identify what falls outside the estate for other reasons.Death-in-service benefits and most pension lump sums are usually paid at the scheme's discretion, and life policies written in trust pay to the trustees. These are usually released on a death certificate alone.
4. Ask each institution what it requires.Every bank and provider sets its own threshold above which it insists on a grant. They range from a few thousand pounds to tens of thousands, and they are set individually rather than by law. This is the question that actually settles it, and it is one phone call per institution to their bereavement team.
5. Assume probate is needed for a solely-owned property.The Land Registry will not transfer or allow a sale of a solely-owned property without a grant. If the home was in one name only, probate is effectively unavoidable.
6. Check the small estates route where it applies.Where nothing requires a grant, institutions typically release funds on a death certificate, a small estates indemnity form and evidence of entitlement. That is the whole process for a great many estates.
7. Work out the inheritance tax position separately.Whether tax is due and whether a full account is needed are separate questions from whether a grant is needed, though they interact — a grant will not be issued until the inheritance tax position has been reported where required. Most estates report as excepted estates with no tax to pay.
8. Get advice if the estate is complicated.Business or agricultural assets, foreign property, trusts, a missing or disputed will, a beneficiary who cannot be found, or an insolvent estate. Each of these is a reason to use a solicitor rather than the personal application route.

Common mistakes

• Assuming a threshold applies across the whole estate — There is no universal figure. Each institution decides for itself, so an estate can need a grant for one account and not for a larger one elsewhere.
• Assuming a jointly owned house passes automatically — Only if it was held as beneficial joint tenants. Held as tenants in common, the deceased's share passes under the will or the intestacy rules, and probate is normally needed.

Questions people ask