Probate Generally

Probate simply means that the executor’s powers to administer the estate of a dead person have been officially confirmed. A document called a “Grant of Representation” is given which enables those administering the estate to gain access to all relevant information, financial or otherwise concerning the person’s estate.

Although anyone charged under a will to act on behalf of the dead persons estate has automatic authority to represent, there are certain cases where evidence of probate is required. If no will exists or no executors have been appointed, then it will be necessary to obtain “letters of administration” which involves a similar procedure.

Under common law, probate has a number of objectives. These are:

To safeguard creditors of the deceased
To ensure reasonable provision is made for the deceased’s dependants
To distribute the balance of the estate in accordance with the intentions of the person whose will it is.

One of the key factors affecting the need to obtain probate is how much money is involved under the terms of the will. Where the sums involved are relatively small then financial institutions and other organisations will not normally want to see evidence of probate. However, it should be remembered that no one is obliged to release anything relating to a dead persons estate unless letters of administration or documents of probate can be shown. Those responsible for administering the estate must find out from the organisations concerned what the necessary procedure is.

Applying for probate

Where a will is in existence and executors have been appointed then any of the named people can make the application. Where a will in existence but no executors have been appointed, then the person who benefits from the whole estate should make the application. This would be the case where any known executor cannot or will not apply for probate.

Where there is no will in existence then the next of kin can apply for probate. There is an order of priority relating to the application:

The surviving spouse
A child of the deceased
A parent of the deceased
A brother or sister of the deceased
Another relative of the deceased

The person applying for probate must be over eighteen. ‘Children’ includes any that are illegitimate. If a child dies before the deceased then one of his or her children can apply for probate.

Application for probate

This can be done through any probate registry or office. There is usually one in every main town and any office in any area will accept the application. If you are writing then you should always address your correspondence to a registry and not an office. You can also contact the Probate Personal Application Department at Somerset House in London. There are also application links available directly from the gov.uk website.