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Obtaining probate or more precisely a grant of probate gives authority to one or more people to legally deal with the assets of a deceased person. The authority is derived from the content of a will which usually contains provisions that name and authorise those who may collect in and subsequently distribute the assets in accordance with the terms of the will, known as executors. To obtain a grant of probate application is made to the court, who after consideration of the content of the will, issue a document known as a grant of probate. In the event that there is no will or there is no one authorised to deal with the assets then the court will issue 'letters of administration' which authorises an individual, usually with an interest in the assets of the deceased to act in a similar way to an executor. Both the validity of the will and the issue of a grant of probate can be challenged or contested in a court of law by a disputed probate solicitor.

Letters of Administration

If there is no will or where there is a will but there is no appointment of an executor under the will, then any of those people having an interest in the assets of the deceased may make an application to the court to be granted authority to deal with the estate such authority being referred to as the grant of letters of administration. The duties of an administrator acting with authority derived from the grant of letters of administration are almost identical to those of an executor whose powers derive directly from a valid will. In distributing the assets of the deceased the administrator must follow legally binding regulations known as the intestacy rules. The issue of a grant of letters of administration can be challenged or contested in a court of law by a disputed probate solicitor.

Disputing a Will

In the event that any of the beneficiaries or potential beneficiaries wishes to contest or challenge the will or if they object to the appointment or behaviour of any executor or administrator, application can be made to a court of law by a contested probate solicitor for a legal remedy. Most court action involving challenged wills and contested probate relates to either inadequate provision for dependants including spouses and children or challenges to the technical validity to the will by disinherited relatives who would benefit under either an earlier will or under the intestacy rules. A contested probate solicitor can cause a caveat to be issued at an early stage to stay the matter in order to allow legal proceeding to be prepared and/or summons can be issued immediately claiming relief, usually resulting in either an emergency injunction or a trial to determine the validity of the will, make provision for appropriate individuals or to remove individual executors who have failed to discharge their legal duties.

Caveats & Injunctions

Caveat - This is a document that is filed in the court by a contested probate solicitor putting the court on notice that there may be an issue with regards to the issue of a grant of probate. Upon receiving an application to issue the grant of probate the court must warn the caveator, the person who filed the request for a caveat, that the application is pending thereby allowing the caveator to take any legal action that they may deem necessary to protect their own position.

Injunction - This is a court order that instructs an individual to do something or instructs an individual not to do something. An injunction can be dealt with on an emergency basis by a court of law in the absence of the party against whom the order is intended however in this case an interim injunction is granted with an early return to court to allow all parties to make representations before a final order is made.

No Will & Intestacy

It often happens that an individual with assets dies leaving no valid will. In this case legislation determines how assets owned by the deceased at the time of death should be distributed subject to the over-ring interest of provision for dependents. The priority of those entitled to benefit is determined by the intestacy rules which have a strict order of potential beneficiaries. Where there is no valid will application for the grant of letters of administration is made by one or more of the potential beneficiaries who must distribute the assets in accordance with the intestacy rules. The actual distribution or indeed the administrator can be challenged or contested in a court of law by a disputed probate solicitor.

Valid Will Requirements

A will does not necessarily have to be drawn up with the assistance of a solicitor however lawyers spend much more time sorting out DIY wills than they do in dealing with a professionally prepared and executed document.

The key requirements for a valid will are:-

• the will must be in writing
• the will must be signed by the testator at the end of the will
• the testator's signature must be witnessed by two witnesses. (A beneficiary or
• their spouse cannot witness a will. If they do they will lose their entitlements under that will)
• the witnesses must sign the will in the presence of the testator and each other

Executors & Administrators Duties

In general terms the responsibility and duty of both an executor and an administrator is to take charge of the deceased's assets and property, pay funeral and administration expenses, settle all debts including any tax that is due and distribute the assets in accordance with the will or in the case where there is no will to follow the intestacy rules. Funeral expenses are paid first and thereafter an order of priority is set by law for the discharge of any other liabilities. In the event that a beneficiary has any doubts about the integrity or behaviour of an executor or administrator an application can be made by a probate lawyer to the court for removal and replacement in addition to immediate injunctive relief.

Family & Dependants

It is usually possible for spouses, some de facto partners, some family members and genuine dependants to instruct a probate lawyer to make an application for financial provision from the estate of the deceased where non has been made. In determining the outcome of a legal case, the judge will consider:-

• whether redistribution would affect other beneficiaries
• type and value of property involved
• ages of potential and existing dependants
• relationship of the deceased to potential and existing dependants
• needs of potential and existing dependants
• personal relationship between the applicant and the deceased

Probate Lawyer

Our specialist contested probate solicitors will deal with all litigious matters on your behalf. If you would like advice and information at no cost about our service just complete the contact form or email our offices or use the helpline and a probate lawyer will call you on the telephone with no cost legal advice without delay.

HELPLINE: ☎ 1800 455 886