Is Probate Required When a Spouse Dies? UK Law Explained

Dealing with the death of a spouse is incredibly difficult, and the added responsibilities of managing their affairs during this time of grief can feel overwhelming. One of the key questions you might face is whether probate is required to handle your spouse’s estate.

Probate is a legal process that confirms the validity of a will and grants the executor the authority to manage the deceased's estate. Understanding when probate is needed can help you navigate this difficult period with greater clarity and peace of mind.

In this guide, we will explain the circumstances under which probate is required, how to handle jointly and solely owned assets, and the steps involved in applying for probate, all within the context of UK law.

If you have any questions we have not answered, the expert Wills, Trusts & Probate solicitors at Percy Hughes & Roberts Solicitors are happy to speak to you regarding your query and provide the legal services you need. You can contact us by completing the enquiry form below or by calling 0151 666 9090.

Understanding Probate: What Is it and Why Is it Necessary?

Probate is the legal procedure that validates a deceased person’s will and grants the executor (the person handling the estate) the authority to administer the estate.

When someone passes away, their estate – which includes money, property, and possessions – must be managed and distributed. If there is a will, it should specify how the estate should be divided. The executor named in the will applies for a grant of probate, which confirms their legal right to handle the deceased’s affairs. If there is no will, the next of kin can apply for letters of administration to manage the estate. Without this grant, institutions such as banks and the Land Registry may not release funds or transfer property.

If you have been chosen as the executor of your spouse or civil partner's estate, you can carry out this process yourself. If not, you will need to wait until the named executor deals with the estate to receive any gifts that have been left to you.

Probate is necessary in many cases, and it serves several critical functions:

• Legal validation: It verifies the authenticity of the will, ensures that it is the last will made by the deceased and confirms that it reflects their true intentions.

• Authority to act: It provides the executor with the legal authority to manage the estate. Duties of executors that the grant of probate enables include accessing bank accounts, selling property, paying debts and taxes, and distributing assets to beneficiaries.

• Asset distribution: It facilitates the proper distribution of the estate according to the will or, if there is no will, under the rules of intestacy. This helps prevent disputes among beneficiaries and ensures the deceased’s wishes are carried out.

• Financial management: It ensures that all outstanding debts and taxes are paid before the estate is distributed. This includes Inheritance Tax, which must be settled as part of the probate process.

At the same time, probate can introduce delays to the estate administration process. It is important to determine whether or not you need to apply for probate, as this can make the process of administering an estate much easier.

When Is Probate Required After a Spouse Dies and What Are the Rights of the Surviving Spouse?

Determining whether probate is required for a spouse’s estate involves understanding the nature, ownership, and value of the spouse’s assets. Understanding when probate is necessary will help you manage the estate efficiently and with fewer complications. Probate may not be required if all the assets are jointly owned, for example, and recognising this in advance can help you to save time. Here are the key considerations:

1. Jointly Owned Assets

When a spouse passes away, assets that were jointly owned with the surviving spouse often do not require probate. For instance, if a property was held as joint tenants, the deceased’s share automatically passes to the surviving spouse. This also applies to civil partners.

Some examples of jointly owned assets include:

• Property: If the property is owned by spouses as joint tenants, the deceased’s share automatically transfers to the surviving spouse without the need for probate although a form will need to be filed with HM Land Registry.

• Joint bank accounts: Joint bank accounts generally allow the surviving spouse to continue accessing funds without the need for probate. Joint assets, such as property and bank accounts, usually pass to the surviving owner automatically.

• Joint building society accounts: Similar to bank accounts, joint building society accounts can be accessed and transferred with a death certificate, which avoids the need for probate.

• Joint savings accounts: Joint savings accounts also usually transfer directly to the surviving spouse without probate.

2. Solely Owned Assets

Probate is often required if there are multiple assets solely owned by the deceased. This applies when the total value of the deceased's estate exceeds a certain threshold in a solely held asset, usually set by the institution holding that asset in accordance with their internal policies.. Any estate holding assets where probate is requested will require probate. Executors might need probate to release funds from solely owned bank and building society accounts, which is fundamental when distributing the estate. Examples of these assets include:

• Bank and building society accounts: Accounts solely in the deceased’s name might require probate before funds are released.

• Personal savings accounts: If these accounts exceed the threshold, probate is necessary.

• Investments and shares: Dealing with shares and other investments can be complex and often requires probate.

• Property owned as tenants in common or in a sole name: If a property is owned by spouses or civil partners as tenants in common, or in one person’s name, the deceased’s share forms part of their estate and will need probate to transfer or sell according to the will or intestacy rules.

3. Property Ownership Types

As mentioned above, the type of property ownership affects the need for probate. If the property was owned as joint tenants, it automatically transfers to the surviving spouse without probate.

However, if the property was owned as tenants in common, the deceased’s share forms part of their estate and will require probate to transfer according to the will or, in the absence of a will, the rules of intestacy.

You will need to check the deed of the property to determine the ownership type.

Special Considerations for Pensions and Insurance Policies

Pensions and life insurance policies occasionally have their own rules. Most pensions fall outside of a person's estate and do not require probate, but it is essential to check with the pension provider as some might need a grant of probate before they can release funds.

Life insurance policies are often paid directly to named beneficiaries without probate, depending on the policy terms.

When Is Probate Not Needed?

There are specific instances where probate is not required. For example, if all assets are jointly owned or if the estate’s value is minimal, the legal process of transferring ownership can often proceed without probate.

Small estates, usually defined as those with a value below £10,000, may not need probate, as many financial institutions will release funds with just a death certificate and proof of relationship. Executors will calculate the value of the estate for the purposes of Inheritance Tax, and this will indicate whether probate is required.

Dealing with multiple accounts can add complexity to the process. In addition to this, if the estate comprises only personal items and no significant financial assets, probate is not necessary.

In cases where all assets are jointly owned or of minimal value, the legal process of transferring ownership can often proceed without the need for probate. This can ease the burden on the surviving spouse or civil partner, as it allows them to manage the estate more straightforwardly.

You can read more on the value threshold for probate in our guide: What Is The Probate Threshold?.

What if There Is No Will? Understanding Intestacy Rules and Letters of Administration

When a spouse passes away without leaving a will, their estate is considered "intestate." This means that their assets are distributed according to the rules of intestacy, which are set out by UK law. These rules determine who is entitled to inherit the estate and in what proportions.

The rules of intestacy follow a hierarchy of who should benefit from the estate. However, these intestacy rules often do not reflect the complexities of modern families. This can lead to issues where your spouse’s specific wishes are not carried out - for example, unmarried partners are not eligible to receive anything under these rules. This is why we recommend having an up-to-date, valid will in place, particularly if your family structure is not accounted for under intestacy laws. 

You can read more about this here in our guide to the consequences of dying without a will.

How Can Percy Hughes & Roberts Help? 

Determining whether probate is needed when a spouse dies can be complex, but understanding the process is crucial for managing their estate effectively. As the surviving civil partner or spouse, there is a lot to consider when dealing with property, bank accounts and finances during a period of grief.

At Percy Hughes & Roberts, our dedicated team of Wills, Trusts, and Probate solicitors is here to help you navigate these legal requirements with confidence. Whether you need assistance figuring out if probate is necessary, applying for probate, or managing the estate, we offer compassionate and professional support every step of the way. Our probate specialists can advise you on the legal aspects of the process and your dealings with the Probate Registry to help make probate unfold as smoothly as possible.

If you require legal advice in relation to the above or need help with anything else to do with Wills, Trusts and Probate, Percy Hughes & Roberts can help. If you would like to contact one of our expert wills, trusts and probate solicitors you can do so by calling 0151 666 9090or by completing the “Get in touch” form on this site.