Do I need probate if my husband or wife dies?
Usually not for anything you owned together, and often not at all. Whether you need a grant comes down to what was in your spouse's sole name and how much of it there was.
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The short answer
- Anything you owned jointly as joint tenants passes to you automatically. The house, the joint account, joint savings: no grant, just a death certificate to each organisation.
- Anything in your husband's or wife's sole name is tested on its own. A sole-name account below the bank's limit (around £50,000 at most large banks) is released without a grant. Above it, or a property in their sole name, and you need one.
- Being the spouse and the sole beneficiary doesn't remove the need. It removes inheritance tax. Those are different questions.
- Pensions and life policies written in trust are paid to you outside the estate and don't affect the answer.
- Keep the figures even if no grant is needed. Your own estate may one day claim your late spouse's unused inheritance tax allowance, and the values will be asked for then.
This is the most common form of the question, and the one where the answer is most often "no". Married couples and civil partners tend to own their home and their main accounts jointly, and jointly owned assets never enter the estate that a grant is needed to administer. What catches people out is the one or two things that were in a sole name: a savings account opened years ago, an ISA (which cannot be held jointly), Premium Bonds, a car, a share portfolio.
What passes to you without a grant
If you and your spouse owned your home as joint tenants, it became yours at the moment of death by what the law calls survivorship. It is not part of their estate and no grant of probate is involved in transferring it. You tell the Land Registry by sending form DJP with a certified copy of the death certificate; there is no fee. Most couples who bought together hold this way, but not all: see tenants in common for the alternative, and check the title if you are not sure.
A joint bank or building society account works the same way. The bank removes your spouse's name on sight of the death certificate and the account carries on as yours. It is not frozen and you can keep using it. See joint bank accounts.
Pensions are almost always paid outside the estate. A workplace or personal pension pays a lump sum or a dependant's pension at the scheme's discretion, guided by the nomination your spouse made, and asks only for the death certificate and your identity. The State Pension stops, and you may be entitled to inherit part of it or to Bereavement Support Payment. See pensions.
Life insurance written in trust is paid by the trustees to the beneficiaries without a grant. A policy that was not put in trust is different: see life insurance.
What is tested on its own
Everything in your spouse's sole name forms part of their estate, and each holder applies its own limit.
- Sole-name bank and building society accounts. Below the bank's limit, the bereavement team pays the balance out on the death certificate and a closure form. Most large UK banks now set the limit around £50,000 per customer; some smaller institutions are lower. Above it, they will ask for the grant.
- ISAs. An ISA is always in one name. Its value counts against the provider's limit like any other account, and you have a separate right to an "additional permitted subscription" of the same amount into your own ISA. See ISAs.
- Premium Bonds and NS&I. Released without a grant only if total NS&I holdings are £5,000 or under. See Premium Bonds.
- Shares and investment accounts. Each registrar and platform has a small-estates limit, typically lower than a bank's. See shares.
- A house or flat in your spouse's sole name. Perhaps bought before you met, or inherited. A grant is needed to sell or transfer it, even to you. See selling a house.
- A car. Rarely forces a grant; see cars.
If a single one of these needs a grant, you need a grant for the whole estate. The application covers everything; you cannot get a grant for one account only.
Why the spouse exemption doesn't settle it
Everything a person leaves to a spouse or civil partner is exempt from inheritance tax, without limit. People understandably assume that if there is no tax there can be no need for probate. The two are unrelated. Probate exists to give organisations proof of who has authority to deal with the assets; the exemption only says HMRC has nothing to collect.
The exemption does make any application simpler. There is no tax to pay before the grant, no IHT400 account to send to HMRC, and the estate is very likely an "excepted estate" whose values are simply declared on the probate form.
What you should do, grant or no grant, is keep a record of what your spouse's estate was worth and what passed to you. When you die, your executors can claim your spouse's unused nil-rate band (£325,000) and residence nil-rate band (£175,000) on top of your own, and HMRC will want the figures from the first death to support the claim. A folder with the valuations and a note of the date is enough.
If your husband or wife left no will
The asset test is the same. If a grant is needed it is called letters of administration and, as the spouse, you are first in line to apply. What the intestacy rules change is who inherits the sole-name assets: as the surviving spouse you receive the personal possessions, the first £322,000 of the rest, and half of anything above that if there are children (the children share the other half). Where there are no children, you receive everything. Jointly owned assets are unaffected because they were never in the estate.
Be aware that an unmarried partner has none of these rights. If you were not married or in a civil partnership, read if my partner dies instead: the answer is different and less comfortable.
What to do this week
- List every asset and note whether it was joint or sole. Bank statements, the Land Registry title (£7 for an official copy if you do not have the deeds), pension paperwork, NS&I, any share certificates or platform accounts.
- Ring each holder of a sole-name asset and ask whether they will need a grant for that balance. Note the name, date and answer.
- Use Tell Us Once when you register the death; it notifies DWP, HMRC, the DVLA and the council in one go.
- If any holder says yes, value everything at the date of death and apply. If none does, administer without a grant: pay the debts, close the accounts, keep the records.
Our checklist of who to tell when someone dies lists every organisation with what each will ask you for.
Common questions
Does a wife need probate when her husband dies?
Not automatically. If the home and accounts were held jointly they pass to her without a grant. She needs probate only if something in her husband's sole name is above the holder's limit, or if there was property in his sole name. The same applies to a husband when his wife dies, and to civil partners.
Do I need probate if my husband left everything to me in his will?
Leaving everything to you settles who inherits and removes inheritance tax; it does not decide whether a grant is needed. That still depends on whether any organisation holding a sole-name asset insists on one. If the sole-name assets were small and there was no sole-name property, you probably do not need it.
Do you need probate between husband and wife if everything is in joint names?
No. Assets held as joint tenants pass to the survivor by survivorship and do not form part of the estate. Send each organisation a death certificate and the asset is put into your name. Check that any property was held as joint tenants rather than tenants in common, because a tenants-in-common share does not pass automatically.
Is probate needed on the first death of a married couple?
Often not, because most couples hold their main assets jointly. It is needed on the first death only where there were significant sole-name assets or sole-name property. It is very commonly needed on the second death, when everything is in one name.
Do I need probate to claim my husband's pension?
Almost never. Workplace and personal pensions are paid at the scheme's discretion, outside the estate, on the death certificate and proof of your identity. Contact the scheme directly. The State Pension is dealt with through Tell Us Once or the Pension Service.
My husband had an ISA. Does that need probate?
An ISA is always in one name, so its value is tested against the provider's limit like any other sole-name account. Separately, as the spouse you can make an additional permitted subscription of the same value into your own ISA. That allowance does not need a grant, though the provider will ask for the death certificate and evidence of the marriage.
Related guides
Important
Solace is not a firm of solicitors and does not provide legal, tax or financial advice. We are an estate administration service and we are not regulated by the Solicitors Regulation Authority, the Financial Conduct Authority or any equivalent body. Nothing in this guide constitutes legal, tax or financial advice, and no solicitor–client relationship is created by reading it.
This article is general information only. It reflects the position in England and Wales at the date shown above; the law and the figures change, and Scotland and Northern Ireland differ in important respects. It may not apply to your circumstances. Whether a particular estate needs a grant is ultimately decided by the organisations holding the assets, and their limits change. Administering an estate carries personal legal responsibility, and you should obtain advice from a qualified solicitor, accountant or other regulated professional where appropriate. Always check current rates, fees and deadlines against GOV.UK before acting.