How to get a Grant of Probate
This article will use some technical legal terms, and so it is important that you understand the meanings of the terms, where possible we will try to use plain English so as not to confuse you.
Testate – this is when a person makes a valid Will before their death.
Intestate – this is when a person does not make a Will before their death, or made a Will that turns out to be invalid.
Executor– someone named in a will as responsible for sorting out the deceased person’s estate.
Testator – a person who has written and executed a last will and testament that is in effect at the time of his/her death.
Probate is the judicial confirmation of the authority of the Executor or Executors to carry out the provisions of a Will. It is usually granted upon an application made to the Probate Registrar by an interested person, either personally or through his Legal Practitioner.
All applications for Probate are made to the Probate Registrar in the High Courts of the State. Probate cannot be granted until after fourteen (14) days of the death of the Testator.
The procedure depends on whether it is contentious (common form probate) or non-contentious (solemn form probate). Application for grant is either contentious or not depending on whether:
- The validity of the will is contested.
- The appointment of an Executor is challenged.
- Probate is sought to be revoked or denied.
This article will discuss the process when it is a non-contentious Probate as it is granted without any action in Court challenging the validity of the Will. To find out about the contentious process, please read this article here – What to do when a Will is challenged.
There are three different stages when applying for grant of probate that is non-contentious, and these stages are outlined below:
Stage 1 – Application for the Grant of Probate
- Upon the discovery of the Will of the deceased person, whether lodged at the High Court or found in a safe place where the deceased person kept it before passing away, the family members or solicitor representing the family members will apply to the Probate Registry for the official reading of the Will.
- The Will is then lodged and sealed in an envelope by the Probate Registry.
- Probate Registrar shall, based on information supplied by the applicant/s and upon production of an official copy of the death certificate of the deceased person, cause a letter or a series of letters to be issued to the interested members of the deceased’s family, inviting them for an opening and reading of the Will, which shall take place at the Will-reading section of the High Court’s Probate Registry.
- At the date of the Will-reading exercise, the delegated officer shall ‘open the Will’ in the presence of all the invited and present family members, and then proceed to read the Will.
- After the Will has been read, the appointed Executors can proceed to apply for the grant of probate to the Will.
Stage 2 – Assessment of Estate
- After the submission of the application, either online or physically at the Probate Registry, a document known as a Bank certificate shall be issued. The purpose of the Bank certificate is to capture all liquid assets such as shares/stock and monies in Bank accounts which hold funds belonging to the deceased person. This Bank certificate will be taken to all the Banks and Registrars of the Companies where the deceased person owned accounts and shares, where the information relating to such accounts and shareholding will be filled and endorsed on the Bank certificate. Such information includes the Bank balances and share portfolio.
- Where real property forms part of the Estate’s assets, the Valuation Unit of the Registry may be required to conduct an inspection of the property/ies for the purpose of ascribing a value to it, after which an assessment for the payment of estate duty shall be issued. This is usually calculated as a certain percentage of the value of the Estate. The sum contained in the assessment sheet/probate pay sheet shall constitute the money to be paid as probate fee/estate duty.
- After the assessment has been issued by the Probate Registry, the applicant will be required to make payment.
Stage 3 – Grant of Probate
- After submission and verification of payment, the appointed Executors are expected to attend the Registry for the Will-marking exercise which entails the Executors attesting that they shall do as expected by the Will and by law. They will also be required to sign against their names as stamped on the original Will.
- After the Will has been marked, the Probate Judge is expected to approve it before the preparation of the Grant of Probate. The Registry then prepares the Grant of Probate and after verifying that due process has been followed, the Registrar signs the Grant of Probate and then the Grant of Probate is then sealed.
Have you recently lost a loved one and you need assistance with obtaining a Grant of Probate? Please send an email to firstname.lastname@example.org, and our team will be happy to put you in touch with a lawyer who can assist..
We hope you have found this information helpful. Please note that this information is provided for general informational purposes only and is not intended to be legal advice. Therefore, no lawyer-client relationship is formed nor should any such relationship be implied. It is not intended to substitute for the advice of a qualified lawyer. If you require legal advice, please consult with a qualified lawyer.