I’ve done a fair amount of posts on various topics but I thought I’d go back to basics with this one:
What is probate?
When someone dies there are two processes which can be gone through to formally allow the estate to be administered: obtaining either a grant of probate or letters of administration. Which method you need to use depends on whether the person who died left a will or not.
Where someone died leaving a will, the person or people named in it (providing they are old enough and mentally capable) will be the executor(s); where there is no will, an administrator will be appointed in accordance with a list of eligible relatives set out by law.
What is an executor?
An executor and an administrator are essentially the same thing. The difference is that an executor is appointed by someone in their will whereas an administrator may be any one of a long list of eligible relatives so they have to claim that right. The list gives an order of priority (see our diagram on the main pages) in case there are competing claims.
Do I always need probate or letters of administration?
The first instance where you do not need to obtain a grant of probate or letters of administration is where property is jointly owned as 'joint tenants'. You may be familiar with the terms 'joint tenants' and 'tenants in common' if you own a house together with a spouse or friend.
The principle is essentially that with joint tenants you own the property as if you were one person - you both own the whole property - so if one dies the other automatically owns that thing.
With tenants in common ownership is divided into shares, so the other person doesn't automatically inherit the rest of the property, that share has to be passed by a will or according to the rules of intestacy.
The principle extends to other property, not just your home. However for the purposes of IHT, one half of the value of the property is included in that person's estate (but bear in mind exemptions and reliefs, such as to spouses).
With smaller estates – the figure usually given is up to £5,000 – it may be possible to deal with the estate without probate. That is because an executor of a will gets their power to administer the estate from the will, not the grant of probate. The grant might be seen as a formal seal of approval. If a bank or other asset holder is willing to send the executor the assets(s) without seeing a grant (they would still demand a death certificate) then there might be no need to go to the probate registry at all.
For more information on what probate is and the process of obtaining it, see The Probate Process