Money is one of the most critical components of life. Every person in this world has to earn money to sustain in this world. Through the money earned the person garners wealth and assets. However, the question arises as to what can happen to this estate when a person dies.
Legal domain has answers to the succession and distribution of one’s estate. There are different ways of transferring one’s property to others during the lifetime of a person but after a person dies the property can be transferred per the Will and Probate or the law of the land.
Will vs Probate
The main difference between a Will and a Probate is that Will is a document that sets forth a person’s expectation or desires relating to the distribution of property after his/her lifetime, while a Probate means the copy of the Will which is certified by a court of competent jurisdiction.
However, the above is not the only difference. A comparison between both the terms on certain parameters can shed light on subtle aspects:
Comparison Table Between Will and Probate (in Tabular Form)
| Parameter of Comparison | Will | Probate |
|---|---|---|
| Meaning | Will is a document expressing the wishes of an individual concerning the distribution of the estate after his/her death. | Probate signifies an approval or a certification by a court of competent jurisdiction indicating the implementation of the Will |
| Creator | Testator (i.e. person who is the owner of the estate) | Executor (i.e. the person who is going to distribute the estate) applies to the court to grant a Probate |
| When in existence? | Will is done by the testator when he/she is alive | Probate comes in effect after the death of the testator |
| Significance | Will signifies how the property of the testator shall be distributed after his/her lifetime. Will specifies to whom and in what proportion the property is going to be distributed. It shall also mention the nature of property as well as the amounts and/or value of property. | Probate signifies that the Will is valid and the executor is entitled to distribute the estate as stated in the Will |
| Legal Document or Proceeding? | Will is merely a legal document | Probate is a legal proceeding per se because the executor needs to apply to the court of law and follow certain procedures in obtaining the Probate. |
| Who signs? | Testator | Judge of the court |
| Which comes first? | Will comes first | Probate comes later |
| Mandatory or voluntary? | Will is not mandatory. If a person does not make a Will property shall be distributed as per succession and family law of the place. | Probate is mandatory for establishing the validity of Will. |
| Revocable or Irrevocable? | Will can be revoked during the lifetime of testator only | Will can be challenged during Probate proceedings |
What is Will?
Will is a document that specifies how, whom and in what proportion the property shall be distributed after the death of a person. The holder of the property is known as a testator when he/she makes a Will. The property stated in the Will can be of any type such as goods, assets, investments, fixed deposits, real property, etc. The people in whose favor the property is going to be vested in the future are called beneficiaries.
Will is considered a legal document. Therefore for making a Will the testator should be of the age of majority, should have sound capacity, there should be no fraud or coercion or misrepresentation. All the necessary aspects for making a valid legal document need to be present for making a valid Will. Most importantly, the Will needs to be signed by the testator to signify express confirmation of the wishes stated in the document. Additionally, the majority of the states/countries may specify that the Will should be attested by at least two witnesses.
Will is an important document as it establishes the vesting of property after testator’s lifetime. This can be extremely critical especially if the property is vast and the testator is concerned that it may be vested in wrongful hands. The legal attorney may be considered as the executor (i.e. the person who shall be responsible for distributing the property of the testator) or certain other people (s) may also be named in the Will to administer the property.
Will can be as specific as possible with comprehensive details regarding the beneficiaries, percentage of the estate which shall be vested, names of executor(s) and their obligations, and information related to providing a gift to anyone. Will may be considered invalid if not executed and not attested by witness but certain other aspects such as incorrect date or any typos may not make a Will invalid.
Different countries/jurisdictions may have specific laws and requirements relating to the making of Will which needs to be given due consideration when creating a Will to avoid a situation of the Will being considered not effective after the lifetime of the testator. Therefore, in most cases, the assistance of a legal attorney is needed for drafting a Will.
What is Probate?
Probate is a legal certification issued by a court of competent jurisdiction signifying the validity of the Will and giving permission to the executor to execute and/or administer the Will. Probate is an important certification when it comes to the actual distribution of the estate. Considered from this perspective, Probate can be called as a document or process of implementation of the Will.
Probate provides a legal authority to the executor to implement the Will. Probate is a legal proceeding in which the court shall determine the validity and authenticity of the Will. Probate is commonly called as the most important step from estate administration.
Probate is also required if there is no Will made by a person. In such a situation, any legal advisor or any other person who was close to the deceased or family of the deceased may apply to the court for obtaining a Probate. Once Probate is issued by the court, the administration of the estate can be performed.
Probate proceedings need to be conducted as per the law of the land. That means, there may be a requirement in certain jurisdictions to obtain a Probate within certain days of the death of the testator.
Main Differences Between Will and Probate
- Will is a legal document indicating the wishes of a person concerning a property after his/her lifetime. Probate is a legal proceeding establishing the validity of the Will.
- Will can be revoked during the lifetime of the testator. Probate can be challenged by any party who wants to oppose the Will.
- Will is signed by the testator. Probate is issued by a court.
- Will is created during the lifetime of the testator. Probate is issued after the lifetime of the testator.
- Will is merely a legal document. Probate can be considered as a legal document as well as a legal proceeding.
- Will is made in favor of certain people to whom the property shall be vested in the future (beneficiaries). Probate is issued in favor of the executor or administrator of an estate.
Conclusion
Estate planning and administration is a complex process in itself. If a testator has a significant amount of property and needs to be distributed to multiple beneficiaries in a certain proportion, the making of Will can be a cumbersome process. Also, it is important to take into consideration certain legal requirements such as execution, capacity, and other things while making a Will.
Will may give a sense of relief to the testator as to the distribution of the property after his/her lifetime, however, the most important aspect is the effective implementation of the Will which can only be done through the Probate process. The Probate provides an authoritative signal to the executor to distribute the estate as stated in the Will which shall finally fulfill the wishes of the testator.
References
- https://www.jstor.org/stable/1119973
- https://heinonline.org/hol-cgi-bin/get_pdf.cgi?handle=hein.journals/uflr43§ion=17