What does probate mean?
The literal meaning of probate is “Proving the Will”, but what’s involved in proving the Will? And what if there isn’t a Will at all? Unfortunately, the literal meaning doesn’t really make understanding what probate is much clearer. It also doesn’t give a proper perspective of what’s involved in “proving a Will”. The term probate can be used to refer to a couple different things, which can make it hard to find exactly what it means.
The first meaning of probate, and closest to the literal meaning, refers to proof that the Will is valid and therefore the executors named in the Will have legal authority to fulfil the wishes of the deceased. This legal authority, or proof, comes in the form of a document called a Grant of Representation or more commonly known as a Grant of Probate. This document proves the executor has the power to deal with the administration of the deceased’s estate.
However, this term is still used even when there is no Will and therefore no executor. In this situation a set of rules called the Laws of Intestacy dictate who has the right to obtain legal authority and become the Administrator. The intestacy laws make provision for the deceased’s family, the next of kin of the deceased to administer the estate but there is an order of priority starting with the spouse/civil partner then the children, then the parents, the siblings etc. Probate means, in this case, proving the right of the next of Kin to administer the estate.
The reason why it is so important to prove the executors right to administer the estate is because it prevents the estates assets being collected by the wrong person or people. Institutions where the deceased held significant assets will ask for probate (a grant of probate) as proof that the person attempting to collect the assets does, in fact, have the legal authority to do so. Until a grant of probate has been issued the assets will be “subject to probate” which means that they will not be released to the executor or beneficiaries.
The second meaning of probate is the process of obtaining a grant of probate. Obtaining a grant of probate includes providing an account of the estate’s assets to HMRC and making an application to the probate registry. HMRC must be satisfied that there is no Inheritance tax to pay or that the correct Inheritance tax amount has been paid. Once the Revenue is satisfied, they give permission for the executor to apply to the probate court for the grant. The court examines all documentation and verifies that the Will is a bona fide legal document. Once all is in order the executor is sent to swear an oath to confirm all is correct. The grant of probate is then issued as physical proof of the executors or administrators’ legal authority to administer the estate.
The final meaning of probate, and possibly the most commonly used meaning, is referring to the entire process of administering the deceased’s estate. This includes identifying and collecting in all assets, selling/transferring property, paying all creditors including taxes and then distributing to it the beneficiaries in accordance with the Will or the Laws of Intestacy.