Will vs Probate: Difference and Comparison

Money is one of the most critical components of life. Every person has to earn money to sustain themselves in this world.

Through the money earned, the person garners wealth and assets. However, the question arises about what can happen to this estate when a person dies.

The 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 a person’s lifetime, but after a person dies, the property can be transferred per the Will and Probate or the law of the land.

Key Takeaways

1. Legal context: A will is a legal document detailing a person’s wishes to distribute their estate after death. Probate is the court-supervised process of validating a will and distributing assets to beneficiaries.
2. Timing: Wills are drafted and executed by a testator during their lifetime, while probate occurs after the testator’s death.
3. Involvement: A will is created by the testator and may involve an attorney, while probate involves the executor of the will, the court, and possibly attorneys representing the estate or beneficiaries.

Will vs Probate

A will is a legal document that outlines an individual’s wishes for how their property, assets, and personal belongings should be distributed after their death. Probate is a legal process that occurs after someone dies, to validate their will and distribute their assets according to their wishes.

However, the above is not the only difference. A comparison between both the terms on specific parameters can shed light on subtle aspects:

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Comparison Table

Parameter of Comparison	Will	Probate
Meaning	Will is a document expressing an individual’s wishes concerning the estate’s distribution after death.	Probate signifies approval or certification by a court of competent jurisdiction indicating the implementation of the Will.
Creator	A testator (i.e. the 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 they are alive	Probate comes into effect after the death of the testator
Significance	Will signifies how the testator’s property shall be distributed after their lifetime. Will specify to whom and in what proportion the property will be distributed. It shall also mention the nature of the property as well as the amounts and value of the 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 specific 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, the property shall be distributed as per succession and family law of the place.	Probate is mandatory for establishing the validity of the Will.
Revocable or Irrevocable?	Will can be revoked during the lifetime of the testator only	Will can be challenged during Probate proceedings

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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 property holder is known as a testator when they make 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 favour the property will be vested are called beneficiaries.

Will is considered a legal document. Therefore, for making a Will, the testator should be of the age of majority, have the sound capacity, and have no fraud, coercion, or misrepresentation.

All the necessary aspects for making a valid legal document must be present for making a good Will. Most importantly, the testator must sign the Will to express confirmation of the wishes stated in the paper.

Additionally, most states/countries may specify that at least two witnesses should attest to the Will.

Will is an essential document as it establishes the vesting of the property after the testator’s lifetime. This can be highly 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 the executor (i.e. the person responsible for distributing the testator’s property), 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 witnesses but certain other aspects, such as incorrect date or typos, may not make a Will weak.

Different countries/jurisdictions may have specific laws and requirements relating to the making of a Will, which needs to be given due consideration when creating a Will to avoid a situation of the Will being considered not adequate 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 administer the Will. Probate is a necessary certification for the actual distribution of the estate.

From this perspective, Probate can be called a document or process of implementing the Will.

Probate provides 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.

Probation is commonly called the most crucial step in estate administration.

Probate is also required if a person makes no Will. In such a situation, any legal advisor or another person close to the deceased or the deceased’s family may apply to the court to obtain a Probate.

Once the court issues Probate, the estate administration 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 testator’s death.

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Main Differences Between Will and Probate

1. Will is a legal document indicating a person’s wishes concerning a property after their lifetime. Probate is a legal proceeding establishing the validity of the Will.
2. Will can be revoked during the lifetime of the testator. Probate can be challenged by any party who wants to oppose the Will.
3. The testator signs will—a court issues probate.
4. Will is created during the lifetime of the testator. Probate is issued after the lifetime of the testator.
5. Will is merely a legal document. Probate can be considered a legal document as well as a legal proceeding.
6. Will is made in favour of certain people to whom the property shall be vested in the future (beneficiaries). Probate is issued in favour of the executor or administrator of an estate.

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References

1. https://www.jstor.org/stable/1119973
2. https://heinonline.org/hol-cgi-bin/get_pdf.cgi?handle=hein.journals/uflr43&section=17

Last Updated : 13 July, 2023