When someone dies, we are often asked the questions:
“What is a Grant of Probate and do I need one?”
The official terminology for a Grant of Probate is that it is a Grant of Probate of a Will, with the Latin word ‘probate’ meaning “to test or prove”.
Because there is no official central record of Wills in England and Wales, even if someone holds a valid Will, it does not necessarily mean that such Will was their Last Will and Testament. Whether the deceased person made the Will many years before or quite recently, there might still be a chance that it was superseded.
Obtaining a Grant of Probate is a process of proving the authority of the executor(s) named in the Will as being the absolute correct person(s) able to deal with the administration of the estate.
The process is that the executor will send the Will that they have to the Probate Registry and the Probate Registry will then publish the Will for (potentially) the whole world to see, calling upon anybody who does have a newer Will to step forward.
On the assumption that nobody does, the Probate Office will issue a Grant which confirms that the Will that has been submitted, is definitely the last Will and Testament.
There are two reasons where a Grant is needed:
- where an asset cannot be released or sold without a Grant; and
- where there might be a claim against the estate.
It might be that a bank or institute will not release funds without the Grant of Probate. This is to ensure that funds are not released to the wrong person.
In practice a Grant of Probate is usually required if there is land held in the deceased’s sole name, often where there are shareholdings, or where there are sums held in a particular bank or building society over a certain threshold (this can often vary between £30,000 and £50,000). A Grant can also be needed to obtain the payout of proceeds of an insurance policy.
Unfortunately, once one institute insists that a Grant of Probate is needed for release of an asset or funds, then the executor(s) has no other choice than to proceed with their Grant application.
The other main reason that a Grant of Probate can be required, is if there are concerns about a possible claim against the estate – either from a beneficiary who would be able to bring a claim for inadequate provision, or that there are concerns about the circumstances leading to the signing of the Will. A Grant can then help protect the executor(s).
There is a similar system where someone passes away without a Will. This is referred to as a Grant of Letters of Administration. Again, this can be required to confirm that the correct person has the authority to deal with someone’s affairs.
Whilst a Grant may be necessary irrespective of whether a Will exists, one of the downsides of not having a Will is that, until a Grant is issued, no one has any legal authority to do anything. This contrasts with the authority of a named executor arising on the date of death. So many simple and straightforward tasks can be done immediately based upon that authority, prior to any Grant being issued.