When someone dies, it’s a natural assumption that everything they owned has to go through probate before it can be passed on. In reality, that’s often not the case. A significant proportion of a person’s estate can pass directly to the people who inherit it, without a Grant of Probate ever being needed.
Knowing which assets fall outside probate can make a real difference to a grieving family. It can mean money reaches loved ones within days rather than months, and it can mean the formal probate process, when it is needed, covers a smaller and more manageable estate.
At Boyletts Law, we help families across Sawbridgeworth and the Hertfordshire and Essex border deal with probate and estate administration every week. One of the questions we’re asked most often is simply: “Does this actually need probate?” Here’s our plain-English guide to the assets that typically don’t.
A quick reminder: what is probate for?
Probate is the legal process that gives an executor (or administrator, if there’s no will) the authority to deal with someone’s estate — collecting in assets, paying debts, and distributing what’s left according to the will or the rules of intestacy. Banks, building societies, and the Land Registry ask to see a Grant of Probate before they’ll release funds or transfer property held solely in the deceased’s name, because it proves the executor has the legal right to act.
But that authority is only needed for assets that were owned solely by the deceased, or that don’t have an automatic mechanism for passing to someone else. Where that mechanism already exists, probate simply isn’t part of the picture.
We see estates where families assume a Grant of Probate will be required simply because there are accounts in the deceased’s sole name. Before making an application, it is always worth checking each institution’s bereavement requirements. We have dealt with estates where, once the individual asset values and ownership arrangements were established, a Grant was not actually required and funds were released without Probate as they were being sent to a solicitors’ account.
Joint bank accounts
Bank and building society accounts held in joint names typically operate under something called the right of survivorship. When one account holder dies, the account — and everything in it — automatically becomes the sole property of the surviving holder. There’s no need to wait for probate, and usually no need to do much more than notify the bank and provide a death certificate.
This is one of the most common reasons a surviving spouse or partner can access money quickly after a bereavement, even while the rest of the estate is still being sorted out.
A word of caution: this only applies to genuine joint accounts held on that survivorship basis. If you’re unsure how an account is structured, it’s worth checking with the bank or asking us to take a look at the paperwork.
Joint property
The same principle can apply to property, but it depends entirely on how the property is legally owned. There are two main ways for co-owners to hold a property:
- Joint tenants — each owner has an equal, undivided share, and on the death of one owner, their share passes automatically to the surviving owner(s) by survivorship. No probate is needed to transfer that share, although the Land Registry will usually want a copy of the death certificate to update the title.
- Tenants in common — each owner has a distinct, defined share (which might not be equal), and that share does not pass automatically. Instead, it forms part of the deceased’s estate and is dealt with under their will or the rules of intestacy, which will usually require probate.
This distinction matters enormously, and it’s one of the most common misunderstandings we come across. Many couples assume that because they own a property “jointly,” it will simply pass to the survivor — but if the property is held as tenants in common, that’s not automatic at all. If you’re not sure which applies to your property, we can check the title register for you.
Life insurance policies written in trust
Many life insurance policies, and in particular those linked to a mortgage or arranged through an employer, are written “in trust.” This means the policy names specific beneficiaries directly, and the insurer pays out to them upon proof of death, entirely outside the estate. Because the payout was never legally the deceased’s asset to begin with, it doesn’t need a Grant of Probate to be released, and it also generally falls outside the estate for Inheritance Tax purposes.
If a policy hasn’t been written in trust, though, the payout usually is treated as part of the estate and will need probate before it can be distributed. This is a good example of how a small piece of planning during someone’s lifetime can save their family significant time and stress later on.
Pension death benefits
Most private and workplace pensions are held in a discretionary trust structure by the pension scheme trustees, rather than owned outright by the member. When the member dies, the scheme trustees decide (guided by an “expression of wish” form the member completed) who should receive any death benefits, such as a lump sum or continuing pension for a dependant.
Because the pension was never legally part of the deceased’s personal estate, these death benefits are normally paid directly to the nominated beneficiaries without needing probate, and they usually sit outside the estate for Inheritance Tax purposes too. It’s a good reminder to keep pension nomination forms up to date, particularly after a marriage, divorce, or the birth of a child.
Small estates
Even where an asset was solely owned by the deceased, many banks, building societies, and National Savings products operate their own small estates procedures. If the total value held with them falls below a certain threshold — commonly somewhere between £5,000 and £50,000, depending on the institution — they may release the funds on production of a death certificate and some identification, without insisting on a Grant of Probate.
There’s no single legal threshold that applies across the board; each institution sets its own limit and its own internal process. If most of the estate is held in one or two accounts under these limits, it’s always worth asking the institution directly what they require before assuming probate is necessary.
Other assets that often avoid probate
A few other categories are worth knowing about:
- Trust assets — property or investments already held in a trust generally pass according to the terms of that trust, not the deceased’s will.
- Chattels and personal possessions — items like furniture, jewellery, and household goods can usually be distributed by the executor without probate, though they still form part of the estate for valuation purposes.
- ISAs with a nominated beneficiary structure — some providers allow assets to transfer directly to a surviving spouse or civil partner via an Additional Permitted Subscription, though this isn’t quite the same as bypassing the estate entirely and is worth checking with the provider.
Why it’s still worth getting advice
Even when you believe an asset falls outside probate, it’s easy to get the detail wrong — particularly with jointly owned property, where the difference between joint tenants and tenants in common can completely change what has to happen next. And even where no Grant of Probate is required, the estate may still need to be reported for Inheritance Tax purposes, so it’s rarely as simple as “no probate, nothing to do.”
If you’re dealing with a loved one’s estate and aren’t sure whether probate is needed, our probate team can review the position, deal directly with banks, pension providers, and the Land Registry, and make sure nothing is missed. Sometimes that means confirming, to everyone’s relief, that probate isn’t needed at all.
Speak to Boyletts Law
Our probate and estate administration team supports families across Sawbridgeworth, Hertfordshire, and Essex with sensitive, practical advice at a difficult time. If you’d like help establishing what does and doesn’t need probate in your particular situation, get in touch on 01279 295047 or complete our enquiries form.