Why Does a Deceased Estate Go to Probate?

When someone passes away, their estate, which includes their assets, property and liabilities, must be managed and distributed in accordance with their will. If no valid will exists, the estate is administered under the rules of intestacy. Probate is the legal process that enables this to occur, providing formal recognition of the authority to deal with the deceased person’s affairs and ensuring that their wishes, or the applicable legal rules, are carried out properly and lawfully.

But why does an estate need to go through probate? Let’s explore the key reasons behind this essential legal step.

1. Proving the Validity of the Will

Probate provides formal confirmation that a deceased person’s will is valid and that the executors named in it have the authority to act. Without probate, beneficiaries and financial institutions may not accept the will as legitimate. The probate process ensures that:

• The will was created voluntarily by the deceased.

• The person making the will (the testator) had the mental capacity to do so.

• The will complies with legal formalities under the Wills Act 1837.

2. Granting Legal Authority

In the UK, executors or administrators require a Grant of Probate (if there is a will) or Letters of Administration (if there isn’t) to manage the deceased’s estate. This grant provides the legal authority to:

• Access bank accounts.

• Sell or transfer property.

• Settle debts and taxes.

• Distribute the estate to beneficiaries.

Without this legal document, financial institutions, the Land Registry, and other entities will not release or transfer assets.

3. You Can’t Sell Property Without a Grant of Probate

One of the most practical reasons an estate must go through probate is that land and property cannot usually be sold or transferred without a grant of probate (or letters of administration where there is no will).

When a person dies, legal ownership of their real estate does not automatically pass to the beneficiaries named in the will. Instead, the law requires formal proof of who has the authority to deal with the deceased’s assets. A grant of probate confirms that the will is valid and that the executor has the legal right to manage, transfer or sell estate property. If there is no will, letters of administration perform the same function by appointing an administrator.

Without this additionally legal authority:

- Land registries will not allow the transfer or sale of property

- Buyers’ conveyancers and financial institutions will not proceed with settlement

- The estate cannot provide clear title to a purchaser

This safeguard protects beneficiaries, creditor, and purchasers by ensuring that property is only sold by someone who has been properly authorised by the court. While there are limited exceptions for jointly owned property (such as property held as joint tenants), most estates that include real property will require probate before any sale can take place.

4. Settling Debts and Taxes

The probate process ensures that all outstanding debts, including credit card balances, utility bills, and loans, are paid from the estate before any distributions to beneficiaries. Additionally, probate involves calculating and paying Inheritance Tax (IHT) where applicable.

5. Protecting the Executors and Beneficiaries

The probate process safeguards executors and beneficiaries by creating a clear legal framework for the administration of the estate. For example:

• Executors can demonstrate they have fulfilled their duties responsibly by providing a clear record of the estate’s administration.

• Probate minimises the risk of disputes over the validity of the will or the distribution of assets.

6. Required by Institutions

Even if the estate is relatively straightforward, many organisations will require a Grant of Probate to release funds or transfer assets. This includes:

• Banks and building societies for accounts exceeding a certain threshold.

• The Land Registry for property transactions.

• Investment firms for shares, pensions, or bonds.

Are All Estates Subject to Probate?

Not every estate in the UK requires probate. For instance:

• If the estate is small (below a specific threshold set by financial institutions, usually between £5,000 and £50,000).

• If assets are jointly owned (e.g., a house owned as joint tenants or a joint bank account). In such cases, the asset automatically passes to the surviving co-owner.

Why does an estate need to go through probate

Probate is a crucial step in the process of managing and distributing a deceased person’s estate. It ensures the legal validity of the will, grants necessary authority to executors, and provides transparency in the payment of debts and taxes. For those dealing with the probate process for the first time, the complexities can be overwhelming.

At RJM Solicitors, we specialise in guiding clients through probate with clarity and efficiency, ensuring every step is handled professionally and compassionately. If you need assistance with probate or have questions about your role as an executor, contact us today on 01685 37 37 21 or email info@rjmsolicitors.co.uk to arrange a consultation.