Probate

What probate is and why it is necessary.

“What is ‘Probate?’”

Probate is simply the process by which the Court supervises the settling of the estate of a deceased person. Probate obliges us to apply to the Court for a Court Order called “Letters Probate” before most persons, businesses and government agencies will allow us to gather in and dispose of the property of the deceased.

It is not uncommon for people to make several Wills during the course of their lifetime. These Wills may be very different from one another. For example, a Will made before there are children may benefit parents or brothers and sisters. Sometimes people may change their mind about who is deserving of their property after death.

Old Wills are not always destroyed when new ones are made. The new Will may be made after moving from one community to another. The old Will may be in storage with the maker’s former lawyer in the old community. It may be that the maker did not take the time to retrieve it. Therefore, there may be several original Wills in the hands of various persons.

If it was not for the “Probate” process, it might simply be a matter of who arrived at the Bank first. Even if someone else arrived later with a newer Will, the first person may have already taken all the money and spent it.

Instead, the “footrace” is to Court. First, the Probate process does not allow anyone to apply for Probate until one week after the date of death of the deceased. Second, it takes some time for the Court to process the Request and issue the Letters Probate. Finally, even if Letters Probate had been issued to someone, if another person brings in a newer Will, the Court will compel the first one to bring back their Letters Probate and account for anything they have done. If there is any argument about which of the Wills is the correct one, the Court will hear evidence and argument and make a decision.

Without the Probate Process, no one could safely deal with the “Executor” of the Estate for fear someone else might show up with a newer Will. Because the Court issues the Letters Probate, one can safely deal with the Executor named. The Probate process is part of a system which has developed over hundreds of years so people can be sure the things they give after their death go to the persons they want them to go to.