What to do after the death of a spouse or civil partner
The death of a spouse or civil partner is undoubtedly a difficult and significant life event to deal with. You will likely have many questions about how to deal with their assets, including whether you will need Probate to do this. We hope that this guide will help address whether you will need Probate for your late spouse or civil partner’s estate, and which assets will pass to you.
What is Probate?
“Probate” refers to the Court document obtained to allow someone named in a will to deal with someone’s estate after their death. For more information, read What is Probate and Do I need it?
Whether you will need Probate after the death of your spouse or civil partner will depend on how they owned any assets, particularly if you held assets together.
How did my spouse or civil partner own their assets?
Your spouse or civil partner will either hold assets on their own (in their sole name), or jointly with another person, such as yourself. When someone owns assets jointly, they will own the assets as “joint tenants” or as “tenants in common”. We explain below the key differences between the two types of joint ownership.
Owning assets as joint tenants is a more traditional type of ownership between spouses and civil partners. This is because when one person dies, the assets will automatically pass to the surviving spouse or civil partner. This principle is known as the right of survivorship.
When assets pass in this way, there is no need to obtain Probate to deal with the transfer of the assets after the death of your spouse or civil partner. This applies to all assets, whether it be a bank account or a property. Usually, all you will need to do is provide a copy of the death certificate to the asset holder. A death certificate is sufficient evidence that the asset can pass into the sole name of the survivor.
Tenants in Common
Where assets are held as tenants in common, you will each own a specific share of that asset. You could each own a half share, or a different percentage.
It is becoming increasingly common for couples to own assets in this way, particularly property, if they have, for example, contributed different amounts to the purchase of the property. Another common reason for owning property as tenants in common is where there has been a previous marriage or children from a previous relationship.
The main difference between owning assets as joint tenants, or as tenants in common, is that any assets owned in this way do not automatically pass to the surviving owner. Instead, your spouse or civil partner’s share in any assets will pass under their will. To deal with assets passing under a will, you will usually require Probate.
If you owned a property as tenants in common, the Land Registry will usually require Probate before a transfer of the property can take place. Sometimes, Probate is not required, but you should seek legal advice on this before applying for Probate.
Whether you need Probate for assets held in a sole name will depend on the value of the asset. Probate is almost always needed for a property held in a sole name, but not always for bank accounts.
In the case of bank accounts, each financial institution has their own requirements for needing Probate. You will find that the financial institutions have set limits for accounts requiring Probate before they close them. This could range from anywhere between £5,000 in account, to over £100,000. You will need to contact each bank to find out what their requirements are.
How do I find out how my spouse or civil partner owned their assets?
To find out about bank accounts or shares, you can contact financial institutions with a copy of the death certificate. The financial institution will confirm whether accounts were owned solely, or jointly with you or another person.
If you are unsure how your spouse or civil partner held their property, check the title document or deeds. If the property is registered at Land Registry, check the Title Information Document. For an unregistered property, you can check the original title deeds. You can see whether the property is held solely, or jointly as joint tenants or as tenants in common. If you need to obtain a Title Information Document from Land Registry, click here: Search for land and property information
What if there is no Will?
If your spouse or civil partner did not leave a will, their assets will not necessarily pass to you automatically.
Only assets held as joint tenants with you will pass to you under the right of survivorship. Any other assets will pass under the rules of intestacy. For more information on which assets you will inherit when there is no will, click here: Rules of intestacy
My partner and I were not married. What should I do?
Where you and your partner were not married, you must be included in your partner’s will in order to inherit their assets. The rules of intestacy do not provide for a “common law partner”, or couples who lived together. This is regardless of how long your relationship was.
What other steps do I need to take after the death of a spouse or civil partner?
For more information on what you need to do following the death of your spouse or civil partner, read our below guides: