Probate is the legal right to deal with a person’s property, money and possessions (also known as their “Estate”) when they die. The person entitled to apply for probate depends on whether or not the deceased died with a Will in place. If there is a Will, the executor named in the Will can apply for probate in the deceased’s estate. If there is no Will, the nearest next of kin is the person entitled to apply. The application is made to the Probate Office and a Grant of Probate (where there is a Will) or Letters of Administration (where there is no Will) is then issued which allows the Executor/Next of Kin to distribute the estate of the deceased to the relevant beneficiaries.
Probate is only required if the deceased owned assets above a certain value and owned these assets in their sole name or as tenants in common. Each financial institution will have their own threshold in terms of what is considered a “small estate” and the maximum amount of funds that they will release without requiring a Grant of Probate. It is therefore necessary to enquire with the relevant financial institution holding the asset to determine whether probate is required.
Where assets are held jointly as joint tenants, the Rule of Survivorship allows assets owned as joint tenants to be automatically inherited by the surviving joint owner. For example, where spouses own a property as joint tenants, the surviving spouse is automatically entitled to the deceased spouse’s share in the property and probate will not be required in this instance. This also applies to other jointly owned assets such as joint bank accounts, although probate may be required depending on the rules of the relevant financial institution or if the joint account was for convenience purposes only.
The first step would be to determine the value of the deceased’s assets and whether they held each asset in their sole name, as joint tenants or as tenants in common. If assets are held in the deceased’s sole name or as tenants in common, it is most likely that probate will be required unless the value of the assets are below the relevant financial institution’s small estate threshold.
Probate may also be required even if a property was held as joint tenants if the deceased owned other assets in their sole name. In that case, the joint property would pass automatically to the surviving joint owner, but probate will be required for all other assets held in the deceased’s sole name.
If you have any queries in relation to probate or any other matters please do not hesitate to contact us on 01 2960666.
