Grant of Probate

The grant of probate process step by step

A valid will does not by itself give the executor authority to act. Banks, the land office and insurers require a court order before releasing assets. That order is probate.

What the court checks before a grant of probate

The court checks whether the will meets the legal requirements: that it was signed by the deceased, properly witnessed, and that the deceased had capacity to make a will at the time.

The original will is required. Where only a copy exists, the application becomes more complex and requires additional evidence about how the original was lost.

A grant of probate and a will under Islamic law

For Muslims, a will is limited to one third of the estate, and cannot be given to an heir who is entitled under faraid unless the other heirs consent. The remaining two thirds is distributed according to faraid.

This means a Muslim will operates as a complement to faraid, not a replacement for it. Misunderstanding this point is a frequent source of dispute after a death.

What the executor should prepare

The original will is needed, not a copy. If the original cannot be traced, the application becomes considerably harder and may require further evidence about how it was lost.

Prepare the death certificate, a list of the deceased’s assets and liabilities, and details of the beneficiaries named in the will. Banks will not release account information before the grant is obtained, so the initial list is usually built from documents found at home.

If one of the witnesses to the will has died or cannot be traced, tell the solicitor early, because it changes the evidence required.

When a will is challenged

The common challenges are that the deceased lacked mental capacity when signing, or that the will was made under undue influence. Either turns a probate application from an administrative matter into a contested one.

A challenge can also come from a family member left out of the will. For non-Muslims testamentary freedom is wide, but there are statutory provisions allowing certain dependants to apply for maintenance from the estate.

If you expect a dispute, gather supporting material early: medical records from around the date, the notes of the solicitor who prepared the will, and evidence that the deceased acted independently.

What your lawyer handles

• Checking the validity of the will in terms of form and execution
• Confirming the named executor and their willingness to act
• Preparing a schedule of the assets and liabilities of the deceased
• Preparing the affidavits and probate application documents
• Filing the application and appearing for the executor in court
• Attending to transfer of property under the will once the court grants probate

Timeline

Documents you need to prepare

• The original will
• Death certificate of the deceased
• Copy of the identity card of the deceased and the executor
• A complete schedule of the assets and liabilities of the deceased
• Details of the witnesses to the will, if the court needs attestation evidence

Costs people often overlook

• Legal fees for the application and court representation
• Court filing fees
• Cost of asset searches
• Land office fee for registration of the transfer after probate
• Service tax of 8% on legal fees

When to stop and get advice first

Frequently asked questions about grant of probate