When does probate apply?

by | Oct 19, 2023 | Probate

Probate is the legal process after someone dies, ensuring their assets are correctly distributed to heirs and beneficiaries.

It involves validating the deceased’s will, assessing the estate’s value, paying off debts and taxes, and distributing the remaining property as the will (or law, if there’s no will) directs. But when does probate apply?

This blog explores probate, helping you understand its significance and nuances.

Probate defined

Probate is a legal process initiated after someone’s death to authenticate their will and ensure it’s executed correctly.

If a deceased person hasn’t left a will, probate also determines how their assets should be allocated in line with statutory regulations.

During this procedure, any existing debts are settled, and the remaining estate is distributed according to the will stipulations or, in its absence, according to the law.

This process provides a systematic approach to handling the deceased’s estate, ensuring fairness and adherence to their last wishes or the law’s requirements.

The role of the executor

An executor plays a vital role in the probate process. Appointed in the will (or by a court if no will exists), this individual or entity is responsible for various tasks. These include:

  • Asset identification: The executor must locate and take control of all the deceased’s assets. This could range from real estate and vehicles to personal belongings and digital assets.
  • Debt settlement: Before beneficiaries receive their inheritances, the executor must use the estate’s assets to clear any outstanding debts the deceased may have left behind. This includes mortgages, credit card balances, loans and final utility bills.
  • Tax duties: The executor is also in charge of handling the deceased’s final tax return and ensuring any taxes owed (or refunds due) are settled. This encompasses both personal taxes and any estate taxes.
  • Distribution of assets: Once debts and taxes are settled, the executor is tasked with distributing the remaining assets among beneficiaries as outlined in the will or, if there isn’t a will, as per legal requirements.

When does probate apply?

Navigating the aftermath of a loved one’s passing can be a complex task, made even more intricate by the administrative responsibilities that come into play.

One primary consideration during this period is determining whether the deceased’s estate needs to go through the probate process.

To shed light on this, let’s explore some prevalent circumstances where probate becomes necessary:

Single ownership of assets

When an asset, such as a property or a bank account, is solely in the deceased’s name, probate is almost always required.

This is because, in the absence of joint ownership, there isn’t an automatic transition of the asset to another individual.

The probate process then legally identifies and facilitates the transfer of these assets to the rightful beneficiaries.

Transfer of investment instruments

If the deceased held investments, such as shares or stocks in a company, the organisations in which they’ve invested will typically want to see evidence of probate.

The reason? These investments are not merely monetary – they signify a stake in the company’s ownership or, in some cases, voting rights.

Before transferring these rights to someone else, companies will usually request proof of legal authority, which comes in the form of a grant of probate.

Life insurance policies without designated beneficiaries

It’s commonplace for life insurance policies to have explicitly named beneficiaries, ensuring a direct payout upon the policyholder’s demise.

However, when such a designation isn’t present, the payout from the policy doesn’t have a clear recipient.

In these cases, probate might be necessary to legally ascertain and validate the rightful beneficiary.

The court’s role in probate

While the executor is pivotal, they don’t operate in isolation. Probate courts oversee the process, ensuring everything adheres to legal standards.

In scenarios where disputes arise – maybe relatives contest the will’s validity or challenge asset distribution – the court intervenes, offering legal resolutions.

Thresholds in probate

Not all of their assets and properties automatically require the probate process when someone passes away.

The need for probate can often hinge on the value of these assets. If the total value is below a certain threshold set by financial institutions, it’s possible to avoid the formal probate procedure.

Differences among institutions

There’s no standardised threshold across all institutions. While many might set their limits within the £15,000 to £50,000 range, these figures can differ widely.

One organisation might have a £20,000 limit, while another could place it at £45,000.

The benefits of seeking professional guidance

Although the concept of probate might seem straightforward, the actual process is often meandering, especially when factors like taxes, debts, or multiple beneficiaries are involved.

Couple this with the emotional challenges of bereavement, and it’s easy to feel lost.

You can find information about probate and apply for it on the Government website. But for many people, consulting with a probate specialist is a wise move.

Our expertise can provide direction, ensuring the deceased’s wishes are honoured, and the law is followed.

Plus, we can answer any niggling questions, making the entire process smoother and less stressful.

Get in touch to talk about the probate process today.


The information provided is of a general nature. It is not a substitute for specific advice in your own circumstances. You are recommended to obtain specific professional advice from an appropriate professional before you take any action or refrain from action. Whilst we endeavour to use reasonable efforts to furnish accurate, complete, reliable, error free and up-to-date information, we do not warrant that it is such. We and our associates disclaim all warranties. The information can only provide an overview of the regulations in force at the date of publication, and no action should be taken without consulting the detailed legislation or seeking professional advice.

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