What Exactly is Probate?


Lots of people hear the word “probate”, but many, in reality, don’t actually know what it means. Most of us know that it has something to do so with Wills, but beyond that it all becomes a bit murky.

 

Well here is a little synopsis. The word “probate” means to prove or validate. “Probate” is the procedure by which a Will is approved by the Court as the valid and last Will of the person who made the Will (the deceased testator). It also confirms the appointment of the person named as the Executor in the Will. The Executor is the person appointed by the Will-maker to deal with all property and financial matters following on from their death.

 

So what does “prove” the Will actually mean? It simply means that a qualified Court officer checks the Will to ensure that it complies with all the strict legal requirements to make it a valid Will.

 

These requirements are as follows:

 

  1. The Will must be in writing. As you can imagine, this involves, usually, ink and paper. However, Wills written on walls and egg-shells have been held by the Courts, in the past, to be acceptable.  Although it’s not recommended (I hasten to add).
  1. The testator (the Will-maker) must sign the document. This can extend beyond a person’s normal signature and many cases have debated the issue when a testator’s signature is different from the norm. However, in essence, any mark made by the testator on the document validates the Will provided it is intended to be his or her signature. So, for example, a testator who is illiterate and uses his/her thumb print as his/her signature to execute the Will, will satisfy this requirement.
  1. There must be two witnesses to attest to the testator’s signature who must be present at the same time. If any beneficiary named within the Will, witnesses the signature of the Will, that person will lose whatever gift or bequest he/she is entitled to under the Will. Therefore, never ask a beneficiary in your Will, or that beneficiary’s spouse, to witness your Will. It is also important to choose your witnesses well and ensure that they are capable of attesting the signature. In a case that dates back to 1844 a Judge said something very peculiar, namely “witnesses should see and be conscious of the act done, and be able to prove it by their own evidence: if the witnesses are not be mentally, as well as bodily, present, they might be asleep, or intoxicated, or of unsound mind.” I sometimes jump in my sleep, but I can honestly say I have never been able to hold a pen and witness someone’s signature in my sleep! People must have been different nearly 200 years ago!
  1. Each witness needs to attest and sign the Will in the presence of the testator; therefore, it would be unwise to send your Will to your witness to sign at a different address.

Probate Forms and Making a WIll

If a Will is not proved, i.e. is not valid, this can cause huge problems for the families involved and could cost thousands of pounds in legal fees fighting over the rights and wrongs. Many people make home-made Wills, buying a kit from high street stationers. Whilst they cost a fraction of the cost of a professionally drawn Will by a solicitor, they usually cost the person’s family a lot more in subsequent legal fees when the Will is proved to be invalid for one or more of the above requirements not being complied with. I once dealt with a case where a well known bank prepared a Will for a client of mine whose signature was only witnessed by one bank employee. As a consequence, the Will was not “proved” and an intestacy situation arose. The deceased was going through a divorce at the time, but as she was still married to her husband, all her property and money went to her husband (even though they had been separated for years) instead of her daughter.

 

For a standard Will we charge £150 plus VAT and for this service clients are assured that they are given the relevant advice from an experienced solicitor who will ensure that their Will is valid and at the end of the day that their wishes will be carried out as intended and avoiding family disputes and quarrels after their days.

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