TSEM6053 | Legal background to trusts and estates: proving a will

To be able to deal with a deceased's estate the executors need to have legal ownership of the assets that pass under the will. They need to prove they are entitled to do this to whoever holds the deceased’s assets. It might be a bank or building society or, in the case of a house, the Land Registry. In England and Wales they do this by applying for a grant of probate to the High Court through the local Probate Registry.

This document establishes the authority and standing of the executors. Normally the court will not issue it until the executors have paid any Inheritance Tax due.

In Scotland the executors have to apply for confirmation. Confirmation is granted by the Sheriff Court of the Sheriff Court District in which the deceased was domiciled at the death, or by the Commissary Office in Edinburgh. Confirmation is the legal evidence of the personal representative’s authority to manage the deceased’s estate, whether or not they died leaving a valid will.

More detailed information on the process of obtaining a grant of probate or confirmation can be found at IHTM05000.

Executors cannot usually access any funds held by the deceased until they get the grant of probate or confirmation. This means they may have to arrange a bank overdraft.

Some executors employ a solicitor or other professional agent to apply for the grant of probate or confirmation, and to complete any Inheritance Tax forms. Others may apply directly.