Probate

Can you prove it?

If dead people could sign cheques and distribute their stocks, shares and other possessions, farewell probate, farewell probate service.

When Fred Bloggs died, he was in pretty good shape, financially at least. He lived in a mortgage-free house that cost peanuts when he bought it 40 years earlier, and was worth a small fortune when he died. Fred had a healthy current account and some shares and no debts except for recent modest credit-card purchases.

Someone has to, in effect, represent Fred to obtain those assets and distribute payment and possessions - and the probate process determines who that person(s) is and issues a Grant of Representation.

This Grant indicates to banks and other asset holders that the individual named has the Court's, er, the Probate Service's authority to act on Fred's behalf. Acting on Fred's behalf means gathering information on his assets and liabilities, collecting his money, and distributing his assets - including paying his debts.

The Court? The Probate Service? Are they separate entities or two names for the same thing?

They are actually one and the same - the Probate Service is part of the Family Division of the High Court.

The Probate Office is where wills are 'proved' ('prove' and 'probate' are similar - the Latin 'probatum' means 'thing proved').

The Probate Office is also the port of call if there is no will or no executor. A probate official will then appoint an administrator - and a Grant of Administration will be issued.

Too small to prove?

Some wills never make it to the probate office. If an estate is small and simple, next of kin do not have to prove their right to their inheritance. They can keep the will - and they should. Keep the will in a safe place. Destroying it does not look good if a dispute later arises.

However, even with a small estate, if assets are held in a bank or in stocks and shares, for example, probate will be necessary.

DIY Probate?

Yes, you can do it yourself, and PA2 is the DIY probate Bible. Seven pages in all, it is worth reading even if your solicitor is handling your probate.

Challenging probate, opposing a grant

Caveat. The term is familiar from 'caveat emptor' - 'buyer beware.' A caveat is a warning.

In respect of probate, a caveat prevents a grant or representation from being issued. It creates time for questions or issues to be ironed out. Is this the testator's final will? Did the testator have adequate mental capacity when they signed the will? Was it, indeed, properly signed and witnessed? Many different types of questions can arise.

To file a caveat, one of two criteria must be satisfied: you have an interest, that is, are entitled to share in the estate; or you have a contrary interest – your interest differs from that of the person making the applicant.

Caveats are not to be entered into lightly. Form PA8 is dedicated to caveats.

Probate is final - except when it is not

In most cases, probate settles the question regarding the people who will execute the will of the deceased. In some instances, however, probate can be challenged, even overturned: a new, later will is found, for example, or fraud or forgery or other naughtiness is suspected.

Any questions?

What if there is a will but it does not name any executors?

What happens if there is no will?

What should you do if you can not find a will?

What papers need to be sent to the Probate Office?

Where does inheritance tax come into the picture?

How long does the whole process take? What happens if the executors live far from one another? What fees need to be paid? What if you do not want to serve as an executor, even if you are named in the will and told the testator that you were happy to be appointed? The starting point for these and other questions is form PA2.

All of the forms and leaflets are listed here.