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18 June 2019 | Comment | Article by Eleanor Evans TEP

The “reading of the will” and other myths about probate

Our clients often ask about the “reading of the will” when they contact us to discuss probate following the death of a loved one, as they have seen “the reading of the will” happen in television programmes or films.

When we are acting as executors of an estate, and are asked “when will the reading of the will take place?” our reply is typically along the following lines:

“Usually, there is no formal “reading of the will”. As part of the administration of the estate, we will contact all the beneficiaries who are named in the will, and will provide the residuary beneficiaries with a copy of the will”.

So, what other myths surround the probate process?

  1. If there is a will, there is no need to go to probate
    It is a common misconception that, if you have written a will, it will not be necessary for probate to be obtained in your estate. Unfortunately, this is not the case. There are many good reasons to write a will. The intestacy rules (which apply where there is no will) may mean your estate does not pass to the people you would wish to benefit. By making a will, you can ensure your estate passes to your intended beneficiaries. A will also enables you to say who you want to act as your executor and as guardian to your children, and it may help to reduce the tax paid by your estate. However, the act of making a will, in itself, will not remove the need to obtain probate in your estate, and probate will often still be necessary.
  2. Probate takes a few weeks
    In a very straightforward estate, it can be possible to obtain a grant of probate fairly quickly, but in most cases, it will be several months before it is possible to apply for a grant of probate. Estates can take up to nine to twelve months to fully administer, and may take longer than this in some circumstances. For example, estates might have properties that take a long time to sell. There could be claims made against the estate, or tax investigations by HM Revenue and Customs, which take a long time to resolve. At the moment, there are long delays at the probate registry, meaning that estates may take even longer than usual to administer.
  3. Anyone can contest a will
    There are only certain circumstances in which individuals can challenge the validity of a will. A will can be challenged due to a lack of formal validity (i.e. it has not been properly signed and witnessed); a lack of mental capacity of the person making the will; or due to undue influence by another having been placed on the person making the will.

It is also possible in some circumstances for certain categories of family members to bring a claim under the Inheritance (Provision for Family and Dependants) Act 1975 if they feel they have not been adequately provided for by the deceased.

It is, therefore, certainly not the case that anyone can contest a will, and it can be difficult, costly and complicated to challenge a will or bring a claim.

For more information about probate and what is involved, please visit our Estate Administration page. For more information on contesting a will or bringing a claim against an estate, please visit our Contested Wills, Trusts and Estates page.

Author bio

Eleanor is Head of the Trusts and Estates Administration Department, a large team dealing with estates and trusts administration on behalf of financial institution and trust corporation clients.  Eleanor is a specialist in wills, probate, tax and trusts, and is a full member of STEP (the Society of Trusts and Estates Practitioners).  She is also a committee member of the STEP Wales branch.

Disclaimer: The information on the Hugh James website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. If you would like to ensure the commentary reflects current legislation, case law or best practice, please contact the blog author.

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