Probate

Will

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:

  • The testator must clearly identify themselves as the maker of the will, and that a will is being made; this is commonly called “publication” of the will, and is typically satisfied by the words “last will and testament” on the face of the document.
  • The testator should declare that he or she revokes all previous wills.
  • The testator may demonstrate that he or she has the capacity to dispose of their property (“sound mind”), and does so freely and willingly.
  • The testator must sign and date the will, usually in the presence of at least two disinterested witnesses (persons who are not beneficiaries).
  • The testator’s signature must be placed at the end of the will.
  • There is no legal requirement that a will be drawn up by a lawyer, although there are pitfalls into which home-made wills can fall.

 

Probate

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:

  • estate assets only consist of a small amount (usually under $50,000 for major banks and lower thresholds for other financial institutions), and/or
  • jointly held assets (and does not consist of real estate in the deceased’s name sole or as tenant in common).

After probate is granted, the executor(s) is also responsible for distributing the assets in accordance with the will.