Probate

Probate is the legal process of administering the estate of a deceased person by resolving all claims and distributing the deceased person’s property under the valid will. A probate court (surrogate court) decides the validity of a testator’s will. A probate interprets the instructions of the deceased, decides the executor as the personal representative of the estate, and adjudicates the interests of heirs and other parties who may have claims against the estate.

Probate Administration

Probate is a process by which a will of a deceased person is proved to be valid, such that their property can in due course be retitled (US terminology) or transferred to beneficiaries of the will. As with any legal proceeding, there are technical aspects to probate administration:

• Creditors need to be notified and legal notices published.
• Executors of the Will need to be guided in how and when to distribute assets and how to take creditors’ rights into account.
• A Petition to appoint a personal representative may need to be filed and Letters of Administration obtained.
• In many common law jurisdictions such as Canada, parts of the US, the UK, Australia and India, jointly owned property will pass automatically to the surviving joint owner separately from any will, unless the equitable title is held as tenants in common.
• There are time factors involved in filing and objecting to claims against the estate.
• There may be a lawsuit pending over the decedent’s death or there may have been pending suits that are now continuing. There may be separate procedures required in contentious probate cases.
• Real estate or other property may need to be sold to effect correct distribution of assets pursuant to the will or merely to pay debts.
• Estate taxes, gift taxes or inheritance taxes must be considered if the estate exceeds certain thresholds.
• Costs of the administration including ordinary taxation such as income tax on interest and property taxation will be deducted from assets in the estate before distribution by the executors of the will.
• Other assets may simply need to be transferred from the deceased to his or her beneficiaries.

In England and Wales, Northern Ireland, Commonwealth countries (common law jurisdictions), Ireland and in the U.S., probate (“official proving of a will”) is obtained by executors of a will while Letters of Administration are granted where there are no executors.

When someone dies, the term “Probate” usually refers to the legal process whereby the deceased’s assets are collected together and, following various legal and fiscal steps and processes, eventually distributed to the beneficiaries of the estate. Technically the term “Probate” has a particular legal meaning but it is generally used within the English legal profession as a term to cover all procedures concerned with the administration of a deceased person’s estate. As a legal discipline the subject is vast and it is only possible in an article such as this to cover the most common situations, but even that only scratches the surface.

All legal procedures concerned with Probate (as defined above) come within the jurisdiction of the Family Division of the High Court of Justice by virtue of Section 25 of the Senior Courts Act 1981. The High Court is therefore the only body that is able to issue the documents which give persons the ability to actually deal with a deceased person’s estate, such as to enable them to close bank accounts or sell property or shares. It is the production and issuing of these documents, known collectively as "Grants of Representation" that is the primary function of the Probate Registries, which are part of the High Court, to which the general public and probate professionals alike apply to for the Grants of Representation.

There are many different types of Grants of Representation, each one designed to cover a particular circumstance. The most common ones are those which cover the two most common situations - either the deceased died leaving a valid Will or they did not. If someone left a valid Will then it is more than likely that the Grant will be a “Grant of Probate”. If there was no Will then the Grant required is likely to be a “Grant of Administration”. There are many other Grants which can be required in certain circumstances and many have technical Latin names but the general public is most likely to encounter these two - the Grant of Probate and the Grant of Administration. If an estate has a value of less than £5,000.00 or if all assets are held jointly and therefore pass by survivorship, for example to a surviving spouse, a Grant will not usually be required.

The general public can apply to a local probate registry for a Grant themselves but most people use a probate practitioner such as a solicitor. If an estate is small some banks and building societies will allow accounts to be closed by the deceased’s immediate family without a Grant, but there usually needs to be less than about £15,000 in the account for them to allow this.

The persons who are actually given the job of dealing with the deceased’s assets are called “personal representatives” or “PR’s”. If the deceased left a valid Will then the PR’s will be the “Executors” who are appointed by the Will – “I appoint X and Y to be my Executors etc.” If there is no Will or if the Will does not contain a valid appointment of Executors (for example if they are all dead) then the PR’s are called “Administrators”. So, Executors obtain a Grant of Probate which enables them to deal with the estate and Administrators obtain a Grant of Administration which enables them to do the same. Apart from that distinction the function of Executors and Administrators is exactly the same.

For an explanation of the intestacy probate process, see Administration of an estate on death.