A grant of probate is a document sealed by the court which legally authorises a person who has been appointed under the terms of the will to collect in and thereafter distribute the deceased’s assets in the way that the deceased intended and outlined in the terms of the will. Authority is vested in the executor directly from the will and provided that the executor abides by the testators stated wishes there is little that can be done to usurp the executors position however if the executor fails in his duty then an application can be made to the court for dismissal and the appointment of others to carry out this work.
This type of legal action is known as contested probate litigation. Contested probate can be complex however due to the value of some estates it is far from uncommon. Contested probate solicitors are often specialists who have great experience in both litigation and non-contentious legal work which is a reasonably rare combination to find in a lawyer. Contentious probate solicitors are often member of ACTAPS – The Association of Contentious Trust and Probate Specialists.
The will may specifically give the executor very wide powers and often makes the executor a trustee of the estate with great discretion relating to distribution the assets. Any or all persons mentioned as executors in the will may make application for a grant of probate and the court will usually insist that all parties jointly share the position unless some positively decline. The court does not pick and chose but respects the testators wishes.
In order to apply for a grant of probate it is necessary for an application to be completed and filed with the court together with a copy of the original will and a tax document which outlines the overall assets of the estate and places an approximate value on the estate. The executor then attends the court to swear an affidavit and thereafter the court seals a document that appoints the executor or executors giving them full power to deal with the estate in accordance with the terms of the will.
If there is no will then there are no executors and no grant of probate as executors are only appointed by a will. In this case the court will grant ‘letters of administration’ to an interested party who is almost always a relative with a potential beneficial interest. That person will then carry out very similar duties to an executor and will collect in and distribute the estate in accordance with statute which sets down a list of those relatives and their priority who may inherit from a deceased person who dies intestate, that is with no will. If there are no relatives who satisfy the requirements of the statute then the assets are forfeited and are claimed by the state.
Many solicitors solicitors are specialists in matters appertaining to wills and probate. They will give you initial free advice relating to any queries that you may have and will give a written quotation in order to carry out any legal work relating to a probate case. They also deal with letters of administration and are well versed in legal actions for contested probate in order to dispute the validity or content of any will.