Many people still mistakenly believe that if a person has made a Will, then probate will not be needed when they die. The need for Probate does not depend on whether or not there is a Will but is based on what assets were held in the name of the deceased.

Probate may not be needed if the person who died:

• only had a small or moderate amount of savings
• owned assets or money jointly with other people - this automatically passes to the surviving owner(s).
• owned land or property jointly as “beneficial joint tenants” – again this automatically passes to the surviving owner(s)

Probate will be needed if the person who died:

• had a large amount of savings or investments in their sole name -the bank or other asset holder will want to see probate to confirm the identity of the personal representative.
• owned land or property in their sole name or jointly as “tenants-in-common” – the land cannot be transferred or sold without probate.

Strictly speaking if the value of an asset or account is over £5,000 the asset holder can ask to see a grant of probate before releasing the funds but in practice most financial institutions have much higher thresholds and many banks will release amounts up to £50,000 without a grant of probate. Whilst this does make the estate administration simpler, concern has been expressed at such large amounts being released without the safeguard of probate being granted to the recipient by the Court.

Why Use a Solicitor?

The probate service is designed for the public to use without the necessity of instructing a solicitor, and, if an executor is able to so, this will represent a significant saving in costs. Some solicitors offer a “grant only” service whereby they will obtain the grant of probate on behalf of the executor and the executor can then proceed with the administration themselves.

If a personal representative prefers to instruct a solicitor to deal with the complete administration then the costs will come out of the estate. In effect, if there are a number of beneficiaries, they will all bear the cost by paying a small portion towards the administration.

Many solicitors now have a direct online portal to the probate registry so that applications can be submitted quickly and accurately.

Using a solicitor protects the personal representative from personal financial liability in the event that things go wrong. Solicitors also have access to specialist probate and insurance services which can minimise or mitigate the risk of error .

Using a solicitor ensures that the administration is compliant with money laundering and tax regulations.

Solicitors have the expertise to identify problems at an early stage and the experience to deal with unforeseen issues. They can identify the need for tax planning or deeds of variation.

Working with a solicitor gives access to other legal services such as conveyancing if there is property to deal with in the estate or other issues like ongoing trusts.

Next Steps...

If you would like advice on this matter please feel free to contact Wills and Probate at Timms on 01283 214231 or email at legal@timms-law.com.