How to probate an estate when someone dies and what to do if you’re nominated as executor in the Will.
Many executors may have been made aware of their duties before death and know where the Will is kept should the worst happen. But if there hasn’t been an opportunity to prepare before the death, then the Will must be located to determine who has been named its executor(s).
If no Will is found at the deceased’s home, it may have been sent to the deceased’s bank, solicitor or Will storage company for safekeeping or to Lawpack’s Will Storage Service.
In England and Wales, the Will may have been deposited at the Principal Registry (formerly Somerset House), in which case a deposit certificate will have been issued on receipt of the Will; the Will can be reclaimed by sending the certificate to:
Record Keeper’s Department
Principal Registry of the Family Division
First Avenue House
42–49 High Holborn
London WC1V 6NP
Tel: 020 7947 7022
If a Will is found, it must be ascertained that it is the deceased’s last Will by making enquiries at, for example, the deceased’s bank and solicitor.
It must bear the signature of the deceased (in Scotland, it must be signed on every page) and of an appropriate witness or witnesses.
Find out more on what to do if the deceased hasn’t made a Will.
In England and Wales, probate may be granted on a copy of the Will so if you can’t find the original, you should notify the Probate Registry as soon as possible that the original cannot be found.
The Probate Registry will tell you what evidence is needed to prove that the original Will hadn’t been revoked by being destroyed before death.
In Scotland, if only a copy of the signed Will can be found, it may be possible for the executors to treat the estate as ‘testate’ and proceed to wind up the estate in accordance with the copy Will, but it will be necessary in the first instance to raise an action in the Court of Session in Edinburgh to ‘prove the tenor’ of the original signed Will using the copy.
If this fails, the estate must be treated as intestate and wound up accordingly.
If the Will appoints only one executor, or if only one person is able and willing to act, a grant of probate can be issued to one person.
If the Will appoints more than four executors, only four of them will be allowed to apply for the grant of probate.
In any estate, some of the executors may renounce their right to apply for probate. Or they may decide not to apply for the time being but to reserve their right to apply in the future so that if, for example, one of the acting executors dies before the estate has been fully administered, the executor with ‘power reserved’ may take his/her place. The same applies in the scenario where the deceased didn’t leave a will.
In England and Wales, if only one executor is taking out the grant of probate, it’s prudent to have ‘power reserved’ for the other executor(s), even if it’s not anticipated that they will want to apply at any stage.
The Probate Registry provides a power reserved form to be completed and signed by the executors who intend to reserve the right to apply for probate.
In Scotland, confirmation is always issued in favour of all executors who have been nominated and who haven’t declined office. An executor appointed in accordance with the terms of a Will is called an ‘executor-nominate’.
No matter how many executors are named, for practical purposes it’s usually easier if one of the executors undertakes the administrative tasks on behalf of them all.
The executors should meet to discuss the practical side of carrying out their executor duties. All official paperwork must be signed by all executors, even if they agree that one of them will deal with the day-to-day administration. This isn’t the same in Scotland where the application for confirmation (C1 Account) only needs to be signed by one executor.
Get expert help with applying for a grant of probate with our Probate Assist service.
Published on: October 26, 2011