Losing a loved one is an emotional and difficult experience, and the process of settling their estate during this time can be even more challenging. If a family member or friend has passed away and left a will, you may be wondering if you need to go through the process of obtaining a grant of probate. The answer to this (as with many other legal queries) is ... it depends.

As you may be aware, a will is a legal document that outlines how someone's assets should be distributed upon their death. However, simply having and leaving behind a correctly executed will does not always give the executors of the will the legal authority to manage and distribute the deceased's assets. That authority comes with a grant of probate.

A grant of probate is a court order that confirms the validity of the will and gives the executors the legal authority to manage and distribute the deceased's assets according to their wishes. In addition to granting legal authority, the grant of probate also provides proof that the original will is authentic.

While having a will is crucial and ensures that it is not necessary to apply for a grant of letters of administration where the assets would be distributed based on the rules of intestacy, there are several reasons why executors might need to obtain a grant of probate.

These reasons include (but are not limited to):

  • Releasing funds: each bank and building society has its own limit over which they will require a grant of probate in order to close the accounts and pay the monies to the executors, for them to then distribute in accordance with the deceased's wishes;
  • Selling property or land: if the deceased owned property in their sole name, or jointly with another as tenants in common, a grant of probate will be needed to give the executors legal authority to deal with the same;
  • Dealing with shareholdings or unit trusts: again this can depend on the value and set-up of the same (and to whom they will be transferred or sold) but more often than not, a grant of probate will be needed;
  • Legal requirements: for example if assets are to be held in trust, for someone under the age of majority specified in the will (usually 18, 21 or 25) or assets are held overseas;

However, if the estate of your loved one is relatively simple, for example if they had minimal assets in their sole name, and all assets in joint names passed by survivorship, you may be able to proceed without obtaining a grant of probate and may be asked to produce a certified copy of the original will.

In summary, whilst having a will is an important first step in ensuring that someone's wishes are carried out after death, a will is not always sufficient to manage and distribute assets without a grant of probate of the will.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.