When is Probate Required?

The loss of a loved one is one of the most stressful things that can happen to a person, and that stress is often compounded by the financial and legal impact of a death. Here at Higgins Miller we specialise in dealing with issues of family law, so as well as our experience of matters such as divorce, adoption and children disputes, we offer expertise on the subject of wills and probate.

Having to ask questions such as ‘when is probate required?’ in the immediate shock and grief of loss is bound to make a difficult situation even worse. The good news is that the team at Higgins Miller have dealt with the issue of probate and wills on numerous occasions and will be able to answer any questions you might have in a manner which is sympathetic but completely clear about the legal issues involved.

Even if the deceased left a will setting out how they wish their assets to be shared out amongst the beneficiaries they name, the question of when is probate required will still be applicable. Put simply, ‘probate’ means giving someone the legal right to bring together the assets of the deceased, value those assets and then pass the estate on.

Initial Stages  

If the deceased left a will then the person who deals with probate will be the person named as an executor. If this isn’t the case then, usually, the closest living relative will be appointed as an administrator.

The first part of probate involves accessing the assets of the deceased such as money left in bank and building society accounts. In order to do this you will need a Grant of Representation, which is a legal document the financial institutions will ask for. Exceptions to this include those estates which are valued at less than £5,000 and don’t include shares, land or property ownership, and cases where the estate passes directly to a spouse or civil partner.

Valuing the Estate

Valuing the estate involves the executor or administrator gathering information on all of the assets left by the deceased. As well as the aforementioned bank and building society accounts, this could mean property, pension and life insurance policies, investments, personal belongings such as jewellery and works of art and motor vehicles. The value of each item at the time of death will have to be ascertained, which will involve getting in touch with the providers of financial products and having properties valued independently by someone like an estate agent.

As well as the assets, any debts owed by the deceased will have to be calculated, and this includes personal debts, credit cards, loans and mortgages, as well as the cost of the funeral. The figure which is left when debts are deducted from assets will be the value of the estate, and this will determine whether inheritance tax is payable.

Inheritance Tax

Estates which are worth less than the current threshold of £325,000, or those which have been left to a spouse, civil partner or qualifying charity do not have to pay Inheritance Tax. Since April 2010 it has also been possible to transfer 100% of any unused Inheritance Tax allowance from a late spouse or civil partner to the deceased, effectively raising this threshold to £650,000.   

Even if Inheritance Tax doesn’t have to be paid, the executor or administrator will have to fill in a Return of Information form for HMRC. If Inheritance Tax is owed, then the longer IHT400 form has to be filled in, detailing the assets and debts mentioned above.

Obtaining Probate

Once the correct forms have been filled in and sent to HMRC and the Probate Registry, and any Inheritance Tax owing has been paid, the executor must attend a Probate venue or the office of a commissioner of oaths – which will usually be a solicitor – to swear an oath in person. This is when the grant of representation will be issued, and the executor or administrator will be able to access all assets, pay any debts, and distribute the remaining estate in line with the wishes set out in any will.

As can be seen from the above, the answer to ‘when is probate required?’ complex and needs to be addressed whenever the deceased has left property, or when a Grant of Representation is needed. Dealing with the paperwork and formalities involved in the aftermath of losing someone close is bound to be difficult, and that’s why it’s vital that you obtain the legal advice of experts such as those at Higgins Miller. Making a mistake at some point could greatly slow down the process, result in the loss of thousands of pounds in unnecessary Inheritance Tax and prevent the final wishes of the deceased from being carried out.

If you’re having to cope with the death of a loved one, or would just like more help with questions such as ‘when is probate required?’ please contact us on 0161 429 7251 or email us at [email protected]. We’ll provide an initial 20 minute appraisal free of charge and we operate a fixed fee first appointment system. This means that you can ascertain your legal position without risking any further expense. For a detailed account of our wider funding options, see here.   


February 26, 2018


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