HCR Law Events

13 November 2020

I am the executor of a loved one’s estate – do I need a grant of probate?

Where a person dies leaving a will, they will have usually appointed an executor (or multiple executors) to administer their estate.

The role of an executor is generally to:

  • ascertain the assets owned by the person who has died and to collect those in
  • to ensure that any and all of their liabilities (including inheritance tax, if applicable) are paid from the estate
  • to distribute the balance of the estate (once all liabilities have been paid) in line with the terms of the will.

In order that the executor may carry out these duties, they will often require a grant of probate. While there are some types of asset which can be dealt with without one, an executor will usually need that authority to administer much of a person’s estate.

What is a grant of probate?

A grant of probate is effectively a court order issued by the Probate Registry which confirms the authority of the executor named in the will to deal with the administration of the estate. The executor will usually need to provide a copy of it to the various organisations where the person held assets e.g. to close bank accounts or to sell or transfer shares and investments. A grant of probate will also usually be needed to enable the executor to sell property owned by the deceased in their sole name.

That said, an executor will not always require a grant of probate to deal with the assets in an estate and there are certain circumstances where assets may be administered without a grant of probate.

Assets passing to the executor

The Administration of Estates (Small Payments) Act 1965 and Schedule 7 of the Building Societies Act 1986 allow certain assets to be paid out without a grant of probate where the value of those assets does not exceed £5,000. The assets in question are usually:

  • bank and building society accounts (although most banks and building societies set their own internal rules and requirements so that the amount which may be paid out without a grant of probate may be higher)
  • National Savings products such as premium bonds
  • Trade union deposits of members
  • Friendly Society and Industrial or Provident Society deposit accounts
  • Arrears of salary or superannuation benefits due to an employee of a government department
  • Pensions where the person was a member of the police, fire authority, Royal Air Force or Army.

Usually, these assets may be dealt with simply by providing the relevant organisations with the death certificate and some will also want to see a copy of the will. Each organisation will have its own individual requirements, so it is important to check with each one exactly what they will need.

An executor can also usually sell the person’s personal possessions without the need for a grant of probate, but remember that personal possessions will still need to be valued for inheritance tax purposes before they are sold or given away.

In the case of cash found at their home or amongst their belongings, the executor will not require a grant of probate to deal with those funds.

Assets not passing to the executor

There are certain assets which, when a person dies, will not pass to their executor but will instead pass automatically to someone else.

Often a particular person will have been nominated to receive specific assets – for example, deposits with Friendly Societies and Industrial and Provident Societies. Assets which have been nominated will pass outside the deceased’s estate (and will be dealt with as per the terms of the nomination) so a grant of probate will not be required to deal with them.

Jointly owned and held assets, including joint tenancies, will pass automatically to the surviving owner(s) upon death. This is known as the principle of survivorship and applies regardless of what the deceased person has specified in their will – no grant of probate is needed to deal with these assets.

Another such situation is where the deceased has made a gift in anticipation of death. To qualify as a gift in anticipation of death, the following conditions must have been met:

  • The deceased must have made the gift believing they were going to die soon
  • They did actually die
  • They parted with the gift
  • The gift was capable of being given away.

Assuming the above conditions are all met, the gift passes, on their death, to the intended recipient of the gift and not to the executor of the estate.

Assets which do not form part of the estate

Some assets do not form part of the deceased’s estate and are administered without a grant of probate. These usually include death in service benefits, lump sum pension benefits and life insurance policies written in trust. Death in service and lump sum pension benefits will generally be paid to beneficiaries specified by the deceased by the employer/pension trustees. The proceeds of life insurance policies held in trust will usually be paid directly to the trustees of the trust in question according to the terms of the trust.

Where do I start?

The starting point for an executor will always be to confirm specific requirements directly with the asset holders, and, if there is still any uncertainty, to discuss the situation with a solicitor.

If a person dies intestate (without leaving a valid will), it is likely that a grant of letters of administration will be required by those entitled to the estate under the intestacy rules, to enable them to deal with the assets in the estate. Again, a conversation with a solicitor should help to clarify exactly what is required when there is no valid will.

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About the Author
Nerys Thomas, Associate (TEP)

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