Applying for probate is not always necessary when the deceased is survived by their spouse.
After someone dies, a grant of probate is often needed. This is the legal document that gives their executor the right to wind up their estate in accordance with their Will. If the deceased did not leave a Will, then the alternative is a grant of letters of Administration appointing an administrator to deal with the deceased’s assets.
However, if the person who died leaves a husband or wife, it is possible that the estate can be dealt with without either grant of probate or the issue of a grant of letters of administration.
When a grant of probate is needed
If the deceased owned property in their sole name, probate will always be needed so that the property can be sold or transferred to the person named in the Will or entitled to inherit under the Rules of Intestacy.
Certain financial institutions may also need to see a grant of probate before they will release funds. Each bank has its own limit above which a grant is needed, usually between around £10,000 and £50,000. Share registrars, life insurance companies and pensions trustees may also ask for a grant of probate.
If the deceased did not leave a Will, then financial institutions tend to be more cautious and will require sight of a grant of letters of administration for much lower sums, often as low as £5,000.
When a grant of probate is not needed
If the deceased left all of their assets to their spouse, then a grant of probate might not be needed, provided that the estate does not include the aforementioned assets.
Where the deceased owned a property jointly with their husband or wife, this may pass automatically to the surviving spouse, depending on the type of joint ownership.
Where the property was owned as joint tenants, then on the death of one of the owners, the property automatically becomes wholly owned by the survivor meaning that a grant of probate is not necessary. A certified copy of the death certificate should be sent to HM Land Registry so that they can amend their records to show sole ownership.
When the property is owned as tenants in common, then the deceased’s share in the property will pass in accordance with their Will. If they leave their share to the surviving spouse and that spouse is already a joint owner, then a grant of probate is not usually required.
However, where the property is jointly owned with someone else and the surviving spouse does not already own a share in it, the Land Registry will ask for a grant of probate before they will deal with a transfer of the deceased’s share.
Where the deceased owned joint bank accounts with their surviving spouse, the bank will often not require a grant of probate, although they will need to have a certified copy of the death certificate so that they can amend the accounts into the survivor’s sole name.
The rules that apply to a husband or wife also apply to civil partners.