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.

Explaining Probate: Define an Essential Inheritance Matter

Explaining the Probate Application

When a person dies, it is necessary by law that all of their personal affairs must be put in order. Below are our thoughts on probate define, as part of our guidance on what commonly happens with a probate challenge.

This is ‘Probate’ and includes ensuring that their estate receives finalisation. The person who finalises the estate is their Executor. However, the executor only has the right to access the testator’s estate once they apply.

In this guide, we will explain what probate is. Especially:

  • the grant of probate;
  • what the purpose of it is;
  • how long the probate process typically takes in the UK and;
  • why probate is necessary to deal with the deceased person’s situation.

Probate: Define why it’s necessary

Also known as ‘Confirmation’ in Scotland, probate definition is the legal process of executing a will and settling a testator’s* estate.

It is important to know that the term ‘estate’ does not simply refer to any property the testator owns. It also includes:

  • making an inheritance tax return to HMRC and paying the tax due;
  • their possessions;
  • their cash holdings and; any land they may own, as well as;
  • any financial obligations they have, including the repayment of loans, child maintenance and the like.

The purpose of probate is to give the executor the legal right to handle the testator’s estate and to make executive decisions on their behalf. Another term for this type of person is Personal Representatives.

Probate: Define What It Does

Probate allows the personal representative to do any of the following:

  1. Finalise all bills and close the testator’s accounts;
  2. Settle debts they did not pay in full yet;
  3. Sell or transfer property the testator owns;
  4. Liquidate or gather assets in all their forms;
  5. Calculate and pay the Inheritance Tax;
  6. Pay any remaining income tax (if applicable);
  7. Distribute the estate as the will outlines, or as the government decrees.

Who Can Apply?

The person who serves as the executor of the will is most often the one who applies for Probate. Executors tend to gain their role through declaration in the will.

However, the situation might arise where the Executor dies. Accordingly, an Executor might also not get a declaration in the will. Moreover, there might not be a will in the first place.

In these cases, the following people can apply for probate instead:

  1. The testator’s surviving spouse. Additionally, this can be done regardless of if the couple is in separation at the time of death.
  2. Also, the children of the testator can apply;
  3. Finally, any other close family members.

If you believe the person who applies for probate is not fit to administer the estate, you can contest it. You can also contest a will if you have a valid reason, but this should be done with the advice and aid of specialist solicitors.

You should be aware though of what happens if you contest a will and take it to court without a reasonable chance of winning. Accordingly, there is a good chance you will be wholly liable for the cost of taking such action. Moreover, that includes the costs of the other side and the court costs.

Probate: Define Who Can Apply

The person who has the right to apply for probate^ can either:

  • apply online through the government website or;
  • hire probate solicitors to do so on their behalf.

If there is no will, the process is similar, but instead of probate, you would instead apply for Letters of Administration. There’s also the matter of an intestate estate, in which the will parties present to the probate court nevertheless earns an invalid declaration.

When you apply, you will need the following information to send in either online or through post as part of the process of administering:

  1. The original Will;
  2. The original Death Certificate or Interim Death Certificate;
  3. Confirmation of an estimate of the estate’s value, critical for estate planning, real estate issues and more.

You will also have to to fill out a few forms. Which forms those consist of in particular will depend on which nation within the UK the testator lives.

For example, suppose the testator lives in England or Wales. In that case, you’ll need to fill out the PA1P application if they have a will. If there is no will, instead it will be the PA1A application.

In Scotland, these forms are officially the C1 and C5 documents.

Once you apply, you will need to send the original documents to the local Probate Registry. You’ll also send along:

  • a fee of £215 if the estate’s potential worth is greater than £5,000.
  • However, if the estate’s potential worth is under £5000, there is no fee to pay.

Probate: Define when it’s not necessary

Probate isn’t necessary when all of the testator’s assets are in a joint account with their living spouse. Also, probate is not necessary if the estate left behind is nominal, or the testator did not have any assets to speak of.

How we can help with probate

As always, legal matters that occur when applying for probate and executing a will are best done with the help of solicitors.

At The Inheritance Experts, we work with law firms who specialise in handling wills and probate. For probate purposes, this means they can effectively support and assist you through all stages of the process.

If you need any help navigating probate, do not hesitate to get in touch with The Inheritance Experts via the contact form on our website or by calling 0161 413 8763.

*A testator is another way of saying a deceased person for whom the will is made for.

^For example, those who are named by either the executor or a close living relative.

How to Contest a Will

If you are considering contesting the will of a relative, it is vital that you are aware of the processes before you start to contest it. That’s true whether you believe that

  • the will is unfair;
  • it isn’t legally valid, or;
  • the testator suffers from undue pressure into making certain people beneficiaries.

This guide will help you to navigate the often complex world of contesting probate.

Contesting a will or contesting the process of probate when a will is valid can only be done by certain people. These people include the testator’s

  • living relatives;
  • those who were a beneficiary in a previous will, and;
  • those with significant reason to believe they’re a beneficiary in the latest will. For instance, if a promise has been made to the person by the deceased.

In addition, a contest of probate must also fall under one of a few categories. These categories include:

It is also important to remember that the time limits for contesting probate are strict. Therefore, you should make sure that you contest the will or the probate process within six months in some cases. However, in some circumstances, there is no time limit as to when you can contest the will.

How to Contest a Will

Contacting a specialist solicitor

If you are considering contesting a will, it is important to find out whether you have a viable claim. This is where The inheritance Experts come in – one of our advisors will speak to you on a free, no-obligation basis and will advise you whether you have a valid claim that has a good chance of success depending upon the facts.

Finding Grounds and Evidence

So, you have a claim that potentially has a good chance of success and you choose to go forth. We’ll put you in touch with a specialist solicitor with experience in wills and probate cases. They’ll also have a track record in achieving positive results for their clients.

Together, you will collect any evidence that you need to make your case. Subsequently, your solicitor will advise you what the best grounds are to contest the will.

Mediation

Once this is done, most solicitors will suggest mediation with the other beneficiaries. Often, this is the best possible first step to attempt to resolve the dispute.

During mediation, you will hold a discussion with the other beneficiaries. A third party without bias leads the discussion, helping you manage your disputes. This is with the aim of resolving any existing issues, any further issues that arise during the discussions and, ultimately, guiding all of the beneficiaries to a conclusion that everyone is happy with. In many cases, mediation will resolve the claim, and the case will not need to continue.

Going to Court

If there’s no resolution through mediation though, it will go to a probate court. There, a judge will balance the evidence and decide the merits of each beneficiaries’ claim. Also, they’ll consider the wishes the testator expresses in their will.

Going to court can be a long and costly process though, and you may not receive a result for a number of years if the judge is unable to make a decision. As we say, the case progressing to court is also extremely expensive. Moreover, if you lose, you may have to pay the other beneficiaries’ legal fees in full.

How to contest a will with our help

At The Inheritance Experts, we work with specialist law firms who have a proven track record in handling wills and probate disputes. This means they are well-placed to help you get the proportion of the estate you are entitled to.

If you believe you have grounds to contest a will and want to know if you have a realistic claim, do not hesitate to get in touch with The Inheritance Experts via the contact form on our website or by calling 0161 413 8763.

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.

Presumption of Advancement cases show need to put agreements in place

You may have seen a probate story in the news the last few days about a mother not being able to claim back money from her late son’s estate.

The mum said that she had loaned her son £170,000 in 2005 to help him buy a house.

Having been diagnosed with an aggressive form of cancer in 2010, the son paid his mother £90,000 from a £350,000 compensation award he was given. The son then married before sadly passing away in 2016 with the entirety of his estate being left to his wife and a number of named charities.

Last June, the mother made a claim on the estate for the outstanding loan (£80,000) as she was not provided for in the deceased’s estate.

However, when the case came to court, the judge found that the mum had not proven the £90,000 was a repayment of the original loan rather than a gift. In addition, she wasn’t able to prove the original £170,000 was loaned rather than gifted to her son. Therefore, the judge ruled against the mum as he considered a legal principle called Presumption of Advancement (PoA) to apply.

What is a Presumption of Advancement?

Put simply, PoA is a well-established principle in UK law which states that courts will presume that, if a person transfers money or property to their spouse or child, this is considered to be a gift in the absence of any evidence to the contrary.

This is why, when the Court of Appeal heard the case again last month (December 2019), it upheld the original judge’s ruling due to a lack of evidence demonstrating that the money from the mother to the son in 2005 was intended as a loan rather than a gift.

To be clear, if this evidence had existed, this would have overridden the presumption of advancement. This evidence could have been something as simple as a hand-written agreement or IOU between the mum and her son.

What makes this case interesting is that provision was made in Section 199 of the Equality Act 2010 to abolish PoA. However, since then, this abolition has not been brought into force as part of UK common law. Additionally, when hearing cases involving PoA, no judge has created a legal precedent by ruling with Section 199 in mind.

The need to create an agreement

As this case demonstrates, it is important to make clear the basis upon which you are providing money to your child. This should be done whether it is a substantial amount to give your child a leg up when purchasing a home, such as in the case highlighted, or is a much smaller amount intended to help them pay some bills at a time when money is tight for them.

It is a great shame the lady making the claim and her daughter-in-law were not able to resolve this matter amicably, particularly given the tragic circumstances under which the claim was made. Unfortunately, this is increasingly becoming the case though, as the number of inheritance disputes increased by 62% year-on-year between 2018 and 2019 according to The Financial Times.

It is also unusual for this case to have come to court too; There is much publicity attached to probate cases. Most though are settled without needing to go to court.

What you should do

At The Inheritance Experts, we work with specialist legal firms who have a proven track record in handling probate cases. This means they are well-placed to help you get the proportion of the estate you are entitled to. 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 case.

If you believe you are due a portion of an estate and want to know if you have a viable case, 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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