Willow

Do I need probate if my spouse dies?

Often, no. Whether you need probate does not depend on your relationship to the person who died, but on what they owned and how they owned it.

What probate actually is

Probate is the legal right to deal with someone's estate (i.e. their money, property and possessions) after death. If there's a will, the executor applies for a grant of probate. If there isn't, the closest relative (usually the spouse) applies for letters of administration. Both documents do the same job: they prove to banks, the Land Registry and others that you have the authority to act.

Why spouses often don't need probate

Two things commonly mean a surviving spouse can skip probate altogether.

Joint assets pass to you automatically. If you owned your home as joint tenants, it becomes yours on your spouse's death, with no probate needed. You simply notify the Land Registry with a death certificate (form DJP). The same applies to joint bank accounts: the bank will usually transfer the account into your sole name once it sees the death certificate.

Banks release small sums without probate. For accounts in your spouse's sole name, each bank sets its own threshold below which it will pay out without a grant. These vary widely, some sit around £5,000, others go up to £50,000. Below the threshold, the bank will typically ask for the death certificate, ID and a signed declaration, then release the money.

Some assets never form part of the estate at all. Life insurance written in trust and most pension death benefits are paid directly to the named beneficiary, so they don't count towards any threshold.

When you will need probate

You'll usually need a grant if your spouse owned any of the following in their sole name:

  • Property, or a share of property held as tenants in common
  • Bank or savings accounts above the bank's threshold
  • Shares or investments held directly (rather than in a joint account)

If you're unsure how you owned your home, check the title at the Land Registry (£7 online). A "Form A restriction" on the title usually means tenants in common, in which case the deceased's share passes under their will or the intestacy rules, and probate is normally needed.

What if there's no will?

You can still deal with the estate; you apply for letters of administration instead of probate. The intestacy rules then decide who inherits.

If your spouse left no children, you inherit everything. If they did leave children, you receive the personal possessions, the first £322,000 of the estate, and half of anything above that. The children share the other half. Unmarried partners have no automatic right to inherit, however long the relationship — only spouses and civil partners count.

How to check, step by step

  1. List everything your spouse owned and roughly what it's worth.
  2. Note how each asset was held — joint or sole name.
  3. Contact each bank, building society and provider. Ask two questions: what is the balance, and will you need a grant of probate to release it?
  4. If every institution says no, and there's no sole-name property, you won't need to apply.

Keep a note of who said what, if you're a Willow user, you can add this automatically.

Cost and tax

If you do need to apply, the fee is £300 for estates worth more than £5,000, and nothing for estates of £5,000 or less. Extra official copies of the grant cost £16 each - order several, as each institution will want one.

Inheritance tax rarely arises here: anything you inherit from your spouse or civil partner is exempt, whatever the amount. You may still need to report the estate's value to HMRC as part of the probate application, but for most spouses there is no tax to pay.

Scotland and Northern Ireland

In Scotland the process is called confirmation, not probate, and the intestacy rules differ. In Northern Ireland the process resembles England's, but applications go to the Probate Office in Belfast and the fee is lower.

The short answer

If everything was jointly owned and any sole accounts were modest, you probably don't need probate. If your spouse owned property or significant assets in their own name, you probably do. A few phone calls should clarify it and most banks have dedicated bereavement teams to help.