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Wills & Succession
10. What is Probate?
Authors: Savage Julia
Firm / Chambers:
Last updated: 24 Aug 2015
- Probate is the process whereby a testator’s will is ‘proven’ and their nominated executors become their legal personal representatives.
- Once probate is granted the testator’s executors have the legal right to deal with the deceased’s property.
- Where the estate is large or it contains real property the executors will not be able to deal with the deceased’s assets until probate is granted. The grant of probate document stamped by the court is evidence that the executors have the legal right to deal with the deceased’s property.
- Some estates may be administered without applying for probate. Where the estate assets do not consist of real property or the assets of the estate are small it is not necessary to apply for probate.
- Before the court will grant probate to the executors the will must be proven.
- This means that the executors provide evidence in the form of an affidavit stating that they believe that the will that they are submitting to the court with the application is the final and valid will of the testator. Their affidavit states their reasons for believing this.
- Where there is doubt about the validity of the will the people who witnessed the testator’s signature on the will may be required to sign an affidavit stating that they saw the testator sign the will and they believe it is genuine.
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