What is probate?
Probate is the legal process by which the executor of a will proves his or her right to administer the deceased’s estate. It is a compulsory process unless the estate is small and meets certain criteria.
When a person dies without a will, an application is made for “letters of administration” rather than probate. Read about letters of administration here.
When is probate necessary?
It may not be necessary to apply for probate if the estate is small. Provided that all of the following criteria are met, an estate can be administered without the need for probate:
- the deceased either owned no land at all or they only owned land as joint tenants with someone else (ie it will be necessary to apply for probate if the deceased owned any land in their sole name or as tenants in common with anyone else);
- the deceased had no accounts with any one bank totalling more than $15,000 (eg if the deceased had accounts totalling $10,000 with bank A and accounts totalling $12,000 with bank B, that is fine);
- the deceased owned no shares in any one company worth more than $15,000;
- the deceased held no life insurance policies with any one insurer totalling more than $15,000;
- the deceased owned no government stock or local authority stock worth more than $15,000.
If the above criteria are met, the bank, company director, or insurer can transfer the relevant property either to the executor or directly to the beneficiaries who are entitled to it, without any need for probate. The executor or beneficiary will usually need to provide the organisation with a copy of the death certificate together with a letter confirming that neither probate nor letters of administration have been granted.
In most other cases, it is necessary for the executors to apply for probate. They should do so before they take significant steps in the administration of the estate.
Exceptions requiring letters of administration
In some limited circumstances, you have to apply for letters of administration even if there is a will. For example, you have to apply for letters of administration rather than probate where:
- the will is invalid;
- the will fails to name an executor;
- the will fails to deal with all of the deceased’s property; or
- the executor named is unable or unwilling to act (for example, because they have passed away or have since lost capacity).
Read more about letters of administration here.
How to apply for probate
Obtaining probate involves the named executor (or executors, if more than one person is named in the will) making an application to the High Court for a “grant of probate”. The application must be supported by an affidavit (a sworn statement) and other documents, which need to be in form required by Part 27 of the High Court Rules. The executor will usually engage a lawyer to make this application on behalf of the estate.
If the application has been made correctly and is unopposed, the Court will issue the executor with a document under seal of the Court known as “the grant of probate”. This document is sometimes also referred to as “the probated will” or simply “probate”.
The executor can then produce the grant of probate as proof of his or her right to deal with the deceased’s estate. For example, a bank will usually want to see a copy of the grant of probate before allowing an executor to withdraw funds from the deceased’s account.