Anyone who has applied for a grant of probate will know the original will must be sent to the probate registry – but what happens if the original will cannot be found?
If a copy of the original will exists, providing certain criteria are met it may be possible to obtain a grant of probate using that copy. It will be necessary to obtain a court order from the probate registry granting personal representative permission to ‘prove’ a copy of the will rather than the original document. Certain evidence will be required in order to secure the appropriate order and this will usually be provided to the court in the form of a sworn affidavit.
The person applying for the grant, usually an executor appointed in the original will, must show they have done all they can to locate the original will such as conducting extensive searches and enquiries. The evidence required will depend upon the circumstances of the particular case. The probate registry will need to be satisfied that the testator (the person who made the original will) had not intended to revoke it and wanted its terms to take effect on their death.[cta]
When someone dies without a will they are said to have died ‘intestate’ and the rules of intestacy dictate who receives their estate. Therefore, before granting an order to prove a copy will, the probate registry is likely to require the consent of individuals who stand to benefit under the intestacy rules, or under the terms of a previous will. This is because these individuals would inherit the estate if permission to prove the copy will is refused.
Once a grant of probate has been obtained on the basis of the copy will, the executor can proceed to administer the estate in accordance with its terms.
Although the potential to prove a copy will offer a solution if a will has been lost, this may not always be the case, especially if a copy of the original will does not exist. Ensuring your will is stored securely and informing your executors of its whereabouts will hopefully mean they will not need to undertake such a procedure when administering your estate.
At George Ide we register all the wills we write free of charge on the Certainty Will Register to avoid this problem. For more information contact the team at 01243 786668 or email us at email@example.com.
Siobhan Richards. Solicitor, Private Client department.
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