GUIDE: When is Probate Not Necessary for the UK?

The following guidelines can help to answer one frequently asked question we face: “When is probate not necessary in the UK?” However, we won’t spend too much time consuming the details of this question, either. That’s because, in effect, probate is required primarily when there is a piece of property in question.

Suppose you become responsible for the administration of the estate of a recently deceased family member. As a result, you’re also squaring the loss with the prospect of spending a long time stuck in the process of handling a probate’s many ins and outs. 

However, you might be surprised to discover that not all estates must go through formal probate in the first place.

Moreover, some of the testator’s assets – even for small estates – avoid the probate process altogether.

But to apply for a grant of probate on your own without inheritance plan attorneys is foolhardy and ill-advised. In truth, you should always speak with a capable probate attorney. Especially before reaching the conclusion that an estate doesn’t have to go through probate.

When is Probate Not Necessary? Some Examples

Yet we’ll explore these matters, and other parts of the estate, as well as we, guide you through whether probate is necessary in certain situations.

Joint Tenancies

In short, you do not need probate with regard to jointly owned property. Effectively, probate is excluded regarding those scenarios in which property in the estate is owned as beneficial joint tenants. By law, such property will automatically become wholly in the possession of the other owner.

As a result, there’s nothing to sort out through any probate courts – on the face of it.

There’s one critical exception, however: If there remains a mortgage on the jointly owned property in question.

Joint Tenancy vs. Tenants in Common

It’s worth noting the importance of a difference between joint ownership and tenants in common. Truthfully, whether a property is held as joint tenants or as tenants in common makes a difference to what happens to the property on the death of a joint owner. Be sure to speak your solicitor about this when it comes to estate planning, inheritance tax and letters of administration.

Joint Bank Account

You might sense a theme here: jointly-owned entities tend to be free from any need to apply for probate. Such is the case regarding bank accounts with beneficial joint owners. In essence, a joint bank account becomes entirely the asset and dominion of the remaining joint owner.

The rule of survivorship is the guiding principle on what happens to a joint bank account in the event of someone’s death. There is a couple of conditions, however, to consider.

  • In essence, it must be safe to assume that all monies that the deceased joint owner contributes will automatically be part of his/her estate in the first place.
  • Alternatively, probate or letters of administration might become necessary if other assets are not jointly owned.

The surviving account holder, in turn, holds all the cards in taking full ownership. To wit, they can simply show the bank/building society the death certificate of the other joint owner. Accordingly, the bank transfers the account into the survivor’s name.

It’s worth noting that exceptions to this might be if both joint owners come to an agreement to do otherwise.

Certain Types of Life Insurance

Indeed, some kinds of life insurance may also be exempt from probate laws. Citizens Advice advises that some life insurance policies can pay out the remainder of the outstanding balance regarding a mortgage, too.

If there is a mortgage on the property, there might be a life insurance policy, an endowment policy, or mortgage protection policy which will pay the outstanding mortgage if the person with the mortgage dies. In this case, you should write to the company, asking for a final statement.

Moreover, such scenarios might lead to the sale of the property and that which comes with such a major change. If that does occur, the mortgage is covered out of the sale of the property.

The Amount of Money in the Estate is Small

Now is where things tend to get a little bit more tricky. Smaller estates, in terms of the monies up for grab, do not tend to require probate either.

One huge factor affecting this might lie in funeral planning and other burial costs. These, in turn, can affect the size of the remaining money still part of the estate.

After the funeral expenses have been paid, the amount of money remaining is under a certain amount. Therefore, those controlling the estate (that is, banks and building societies) might be ready to release it to you without requiring the need to apply for probate or letters of administration. In effect, it’s quicker (and simpler) for them to just do this than to go through the entire probate process.

Also, some banks and building societies will release money needed to pay for a funeral, probate fees and inheritance tax.

From one estate to the next, however, please note that what constitutes a “small amount of money” will vary. As a result, it’s difficult to set a benchmark as to what constitutes “small.”

Insolvent Estate

In the tradition of the small money estate, the insolvent estate is also rather precarious. Effectively, in this scenario, you discover that the estate is insolvent. As a result, there is not enough money in the estate to pay all the debts, taxes and expenses.

This potentially devastating effect on the estate’s viability also doesn’t require the pursuit of probate.

Need to find when probate is not necessary? Call us!

Contact The Inheritance Experts if you’re considering contesting probate or the respondent in a probate dispute. We listen to your story and offer capable legal advice on whether you have ground to contest probate. If that is the case, we’ll be glad to show you the proper way to proceed with your claim.

Who Has Contesting a Will Rights?

If you are considering your contesting a Will rights, it is important to make sure that you are legally allowed to raise a dispute.

One of the main criteria for deciding if a person is entitled to contest a will is whether or not they belong to one of six defined groups that are considered to have the legal right to challenge a will or probate process.

In this guide, we will outline these six groups, along with some of the complex rules that define each group.

Family members

Whether you are related by marriage or by blood will play a factor in determining your right to contest a will. Those family members that are blood relations are in the Inheritance Act, together with a specific list that names relatives that can make a claim for declaring a will invalid.

Even if you aren’t a blood relative, your relationship with the testator will be taken into account. Moreover, you do have legal protection in those cases as well.

Understand contesting a Will rights in England or Wales? Learn more

Beneficiaries of contesting a Will Rights

As a beneficiary in a will, you have a legal entitlement to inherit your piece of the will. Consider two things that the executors of the will might not do.

  • First: what if they don’t pay you the sum the testator left to you?
  • Additionally, what if they don’t hand over any items the testator left to you in the will?

You’d have grounds to make a claim. This way, you ensure that you receive exactly what you deserve. By not executing the testator’s wishes as to the will states, it would be the case that the executor is acting unreasonably in their legal duties.

Furthermore, as a beneficiary, you can also dispute the division of the rest of the will. Especially if you consider the division of the deceased’s estate to be unreasonable.  It is worth remembering that, when considering a will, the ‘estate’ is not just property, but also entails the whole lot. All of the testator’s possessions, cash holdings, savings accounts or investments, and even the land they own.

Therefore, consider if you were in business with the testator as an equal partner. Next, the other business partners receive a greater share of the business than you were. Accordingly, you may feel that this is unfair and want to contest this.

Beneficiaries of earlier wills

As new people come into their lives, people do change their wills and will add these new people in. As a result, people previously in a will may be subject to removal. For example, if a person divorces and then remarries. It’s understandable that they would remove their ex-spouse from their will and replace them with their new spouse.

However, if you’re in an earlier version of a will but not the recent version, you can dispute the will. But only if you can prove that there is a valid reason why you should still be a beneficiary.

For example, say your ex-spouse pays you child maintenance to support the child(ren) you had together. But then the spouse dies, leaving you nothing in the will to help with the upbringing of your child(ren). Then it would be understandable that would want to contest their will.

With this example, any money or other part of their estate your ex-spouse leaves to your child(ren) belongs to them. Most likely, it goes into a trust until they reach adulthood. This money is not for you to use to raise them. You would need to make a separate application for the will to provide continued child maintenance payments.

In addition, this group could at times raise a dispute that causes a criminal investigation to commence.*

Creditors and contesting a Will rights

If you are someone the testator owes money to, you can claim this debt from the testator’s estate. If this is you, you should first try to have what is known as a Section 27 notice sent out. This can be a providence to help those the testator owes money to.

Broken Promises

Among contesting a will rights, this is a particularly major one.

Say you were relying on inheritance for your future that the testator says you’ll receive. As a result, you may be able to challenge that person’s will if they don’t follow through on that promise. You should know that this can be a complex area to dispute though. Therefore, seeking legal advice as early as possible is smart.

You’ll need to prove the promise was made, and that you’re suffering as a result of the promise being broken.

Financial dependents

Even if you are not related to the deceased, you may be able to to make a claim to their part of their estate if it can be shown that you were financially dependent upon the deceased, whether this was monetary or in the form of accommodation.

This group has protection under the Inheritance Act, so you will normally need to make this claim within six months of the probate date.

How we can help with contesting a will

If you fall under any of these categories, there is a chance that you may be able to successfully contest a will.

However, it’s essential that you take appropriate advice before contesting the will.

This is where The Inheritance Experts come in. Following your free, no-obligation discussion with us, we will transfer you to a specialist solicitor. Your solicitor is keen to challenge the will or probate process on your behalf given the circumstances of your claim. In turn, it helps you to get the share of the estate that you deserve.

If you are contesting a will you have not been named in or which you feel is unfair, do not hesitate to contact us via the contact form on our website or by calling 0161 413 8763.

*Particularly if it can be shown that they have been taken out of a will due to fraud or a person wielding undue influence on the testator. Especially when they were not in a fit state to be making decisions about amendments to their will.

Why you should draw up a will

Ah, Wills: it may seem like something you don’t need to do for a long time. Yet there are multiple reasons why you should consider drawing up a will now.

For example, if you have children, a will can clearly state who your child(ren)’s legal guardians would be. Also, who you would want to take care of them in the event anything were to happen to you.

Similarly, you can also specify how those guardians bring up your child(ren) too. For example: should they go to religious schools for their education? Will the child(ren)’s grandparents have access rights?

In addition, you can also use your will to specify what your wishes are for your funeral. This does not simply have to be whether you choose burial or cremation. It can also include

  • any songs to play during the ceremony;
  • where you like the ceremony to be held, and;
  • what you would like to happen to your ashes if you do choose cremation.

Other things you can do in a Will

Some people also use their will to specify that they want to donate their body to a medical research facility, such as the UK Biobank. Or they specify that they wish to donate their organs, too. On this, we would say that you should speak to your friends and family about your wishes too though.

Furthermore, by drawing up a will, you can also state clearly who you want to get what aspects of your estate. To be clear, a person’s ‘estate’ does not refer solely to any property they own, such as a house or a flat, but also all of their possessions and any money, including the contents of ISAs, saving bonds and any investments.

Decide on property division through Wills

Therefore, through Wills, you can leave your property to your direct next of kin. That might mean your spouse or your child(ren), while also leaving individual possessions to specific people inside and outside of your family.

For example, say you have an ornament in a display cabinet that your best friend admires. With a will, you could henceforth specify that they get it once you pass away. Similarly, you might share a hobby with one of your grandchildren (stamp collecting, perhaps). Accordingly, your will can specify that he/she gets your collection when you pass away. Rather than leaving it up to the frailties of common sense to prevail after your death.

On this, it is worth noting that, if you were to die intestate, the rules regarding statutory legacy changed recently.

It makes sense then to draw up a will. It ensures they divide your estate as you wish; therefore, you’re also helping to squelch the possibility that the division of your estate leads to a dispute following your death.

Accordingly, we’d suggest that it will also help those you leave behind. Rather than having to divide your belongings and the potential squabbles this could cause, they can instead focus on grieving your passing.

What you should do about Wills

In the first instance, make sure that you get a will drawn up! Depending upon the complexity of the will you want to draw up, this needn’t cost the earth either. In fact, a simple will could cost you from around £80 to have drawn up depending upon the firm you use.

But a specialist will involving the creation of trusts, overseas properties, etc, cost over £500 to draw up. On this, please note that national laws may apply if you own land and property in other countries. For example, if you own land or property in Italy, Italian law states that this passes automatically to your children upon your death.

However, say one of your family members dies without having left a will (known as ‘dying intestate’). Or you feel that a family member’s will treats you unfairly and the estate is now in dispute. It’s a good idea to speak to someone with experience in the areas of contesting a will or contesting probate.

More About Us

At The Inheritance Experts, we work with specialist legal firms who have a proven track record in handling wills and probate matters. This means they are able to help you get the proportion of the estate you deserve. After your initial consultation with our advisors, which is done on a free no-obligation basis, we will match you with the firm that best suits the circumstances of your claim.

If you believe you are due a portion of an estate and want to know if you have a fair and realistic claim to some or all of it, do not hesitate to get in touch with The Inheritance Experts via the contact form on our website or by calling 0161 413 8763.

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