A will or testament is a legal document by which a person, the testator, expresses their wishes as to how their property is to be distributed at death, and names one or more persons, the executor, to manage the estate until its final distribution.
Any person over the age of majority and being of sound mind can make a will, with or without the aid of a lawyer. Additional requirements may vary, depending on the jurisdiction, but generally include the following requirements:
Probate refers to the process of proving of the will of a deceased person and also to a Grant of Probate, the legal document that is obtained.
The granting of probate is the first step in the legal process of administering the estate of a deceased person, resolving all claims and distributing the deceased person’s property under a will. A probate court decides the legal validity of a testator’s (deceased person’s) will and grants its approval, also known as granting probate, to the executor. The probated will then becomes a legal instrument that may be enforced by the executor in the law courts if necessary. A probate also officially appoints the executor (or personal representative), generally named in the will, as having legal power to dispose of the testator’s assets in the manner specified in the testator’s will. However, through the probate process, a will may be contested.
Only the executor(s) of a Will can apply for a Grant of Probate. It is the duty of the executor(s) of the will to obtain probate in a timely manner.
To obtain a grant of probate, there must have been a valid will and assets left by the deceased person. Usually, asset holders require a Grant of Probate unless:
After probate is granted, the executor(s) is also responsible for distributing the assets in accordance with the will.