Probate is a necessary part of the process in many cases when there has been a death and assets are left behind. It is often assumed that probate won’t be required where the deceased has left a Will, but the reality is that what determines whether or not probate is necessary is the assets themselves and not the presence of a Will.

What is a grant of probate?

Also known as a grant of representation, a grant of probate will be obtained by the executors of the Will. The executors will apply to one of the probate registries that are located around the UK to obtain the grant. Its purpose is to confirm that the executors are entitled to handle the deceased’s assets.

What’s the difference between the Will and the grant of probate?

The Will is the document that sets out the wishes of the deceased when it comes to the assets they are leaving behind. It will identify the beneficiaries – i.e. the individuals or organisations chosen by the deceased to inherit the assets. The grant of probate is effectively the machinery that will enable these wishes to be put into motion. It gives the executors of the Will the power to distribute the assets to the beneficiaries in the way that the Will describes.

What if there isn’t a Will?

A grant of probate may still be required, depending on the assets the deceased leaves behind. As there won’t be any executors, who is entitled to apply for the grant of probate will depend on family members who survive the deceased. The intestacy rules will determine who is entitled to the assets left behind as well as identifying who is entitled to apply for a grant of probate.

What documents are involved in a grant of probate application?

An inheritance tax form will need to be completed setting out all the assets and liabilities that relate to the estate. Where there are executors to the Will a written oath will need to be prepared by solicitors for the executors to sign. 

How different assets may affect the need for a grant of probate

• Jointly held assets. If all assets are jointly held and the other person is still alive then there may be no need for a grant of probate as all the assets will simply pass to the survivor. However, where anything is in the sole name of the deceased a grant of probate will be necessary.
• Bank and building society accounts. Each bank and building society will have a threshold for an account balance, above which a grant of probate will be required to access the money in that account.
• Shares (or unit trusts). It’s common that a grant of probate is required if shares are to be sold or transferred to a beneficiary. The only time that this may not be necessary is where the shareholding involved is very small, in which case a grant of probate may not be required to proceed.