Many people have the idea that if you have a Will, your estate won't need a Grant of Probate or if you do have a Will, your estate is required to apply for Grant of Probate. Neither of these myths is true.
So what is Grant of Probate? It is a document which proves that a Will is valid and the person who is appointed as executor in the Will has the power to deal with a deceased’s persons assets. If a deceased person did not leave a Will, the Rules of Intestacy state who is entitled to act to deal with a persons’ assets and they are known as Administrators. Collectively Executors and Administrators are known as Personal Representatives.
A Grant of Probate is issued where there is a valid Will, and Grant of Letters of Administration is issued where there is no Will. Both of these are referred to as Grant of Representations. These documents which are issued by the Probate Registry enable Personal Representatives to sell or transfer assets in your estate such as property and investments.
Not all estates however, will need a Grant of Representation. In order to ascertain whether this document is necessary your Personal Representatives need to look at what kind of assets are in a deceased estate.
For example, if a couple own their family home as joint tenants (as opposed to tenants in common) and the majority of bank accounts are held jointly, no Grant of Representation would be necessary to transfer the assets because they pass automatically to the survivor when one person dies. However, if the first spouse passes away, and they had assets in their sole name, such as a second property, investments, or bank accounts with a balance over the bank's threshold (and each bank is different), then a Grant of Representation would be required.
I recently spoke to a widow whose husband had left a Will and she wanted to make the application for Grant of Probate as she had read on the internet this is what she needed to do. She was in a panic that she would miss the deadline for making the application. I assured her that there is no deadline for making an application for Grant of Probate, and after speaking to her further, her husband left no assets that needed Grant of Probate, as they all passed by survivorship.
Not making a Will because you believe that this means your estate will need a Grant of Probate is a mistake. Making a Will, however, will ensure that your estate passes the way you wish it to without having to rely on the Intestacy Rules, which could be detrimental to your family in certain circumstances, and that you can select Executors who you trust to apply for Grant of Probate and administer your estate.