Right to Apply

Do you have a right to apply for Probate?

To apply for probate you have to have the right to do so.
That right comes from the "executor appointment clause" in the Will, and for most users of our Probate Kit it is easy to work out who has the right to apply.


The usual situations - some examples


John's Will says "I appoint my wife Mabel"
Only Mabel has the right to apply


John's Will says "I appoint my wife Mabel and my son James"
If both Mabel and James are still alive, then they both have the right to apply and one can apply, or both can apply together

John's Will says "I appoint my wife Mabel as executor and if she does not survive me by 30 days then I appoint my son James and daughter Julie"
If Mabel is still alive she is the only one with the right to apply (because the condition for the appointment of James and Julie has not happened)
If Mabel has died already then James and Julie both have the right to apply and either of them can apply, or both can apply together.

In all of the above cases the "right to apply" comes from the Will itself, so satisfying the Probate Office that they should accept an application from you is straightforward, and we have sample applications for them (and other similar situations as well).

Sometimes though, it takes more effort to satisfy the Probate Office that it should grant Probate to you.

What if - - ?

What if John's Will says "I appoint my wife Mabel as executor and if she does not survive me by 30 days then I appoint my son James and daughter Julie"
AND Mabel is still alive,
BUT:
she refuses to apply, OR
she has lost the mental capacity to apply.

The condition for the appointment of James & Julie has not occurred, so they do not have the right to apply. (Such applications are outside the scope of our probate kit).

NEXT: Your probate options