Firstly, what is probate? Probate is the legal authority to manage a person’s property, finances and belongings (their estate) after they pass away.
You should avoid making any financial arrangements or selling property until probate has been granted. However, probate is not always required in England and Wales.
Key Takeaways
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Probate is not always required: Certain assets, such as jointly owned property, small estates, and some life insurance or pension benefits, can pass without probate.
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Requirements vary by asset type: Each case should be reviewed individually, as rules differ for gifts, partnerships, and excepted estates.
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Professional guidance is recommended: Our solicitors at Howell Jones can provide expert advice on probate and estate matters.
There are certain circumstances in which probate may not be necessary; these are as follows:
1. Lump Sum Death Benefits and Policy Proceeds
Some assets fall outside the deceased’s estate and can be claimed without probate. These include life insurance policies with named beneficiaries, death-in-service payments, and pensions not in drawdown. In these cases, the provider typically pays directly to the nominated beneficiary upon receiving the death certificate and relevant forms. Since these benefits do not pass through the estate, probate is usually unnecessary.
Note: From 6 April 2027, pension death benefits will become subject to inheritance tax (IHT), but life insurance and death-in-service benefits are generally exempt.
2. Jointly Owned Assets
Assets held as joint tenants, such as joint bank accounts or property, automatically pass to the surviving owner under the right of survivorship. No grant of probate is required in these cases. However, assets held as tenants in common do not pass automatically and will usually require probate.
3. Small Estates
If the estate is modest, some financial institutions may release funds without probate. Each sets its own threshold, commonly between £5,000 and £50,000. For instance, in Marsh v Goddard, Lloyds Bank waived the need for probate as the balance was below their £50,000 limit. However, if an executor needs to open an executor’s bank account or deal with other formalities, probate may still be needed.
4. Donatio Mortis Causa
A donatio mortis causa is a gift made by the deceased in contemplation of imminent death, intended to take effect only upon their passing. Provided legal criteria are met, the asset transfers directly to the recipient without going through the estate, so probate is not required.
5. Partnership Property
If the deceased was a partner in a business, and the partnership agreement provides for their interest to pass automatically to surviving partners, probate may not be necessary. However, if land or property is involved, a grant may be needed to transfer legal title.
6. Excepted Estates
“Excepted estates” are those that fall below the IHT threshold or meet specific exemptions (e.g. everything passing to a spouse or charity). For such estates, simplified IHT reporting applies, and probate may not be needed if financial institutions are satisfied with alternative documentation.
While probate is often required, it can be avoided in specific scenarios involving jointly owned assets, low-value estates, or assets passing outside the estate. Each case should be reviewed individually, and institutions contacted directly to confirm their requirements.
With our Surrey solicitors at Howell Jones, expert help is just a conversation away. For professional probate advice, contact one of our friendly Wills & Probate team today on 0800 011 9813.
