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The terms Probate and Will are often misused, either separately or interchangeably. Some assume that a Will is the same as Probate, while others believe that having a Will eliminates the need for Probate. Both assumptions are incorrect.
Although both Probate and Will relate to matters after death, they are separate legal concepts in estate administration. This discussion will highlight the differences between a Will and Probate and their respective roles in estate administration.
Will
A Will is a legal document which outlines a person’s (the Testator’s) wishes for the administration and distribution of their assets upon their death. For a Will to be valid, it must comply with the requirements of the Wills Act, 1837 as amended. The will must be in writing, signed by the testator, and attested to by at least two witnesses.
A valid Will is required to be lodged at the Probate Registry of the High Court of the State where the Testator resides. The lodged Will is what will be read and given effect to upon the death of the Testator.
Probate
Probate is a legal process which authorises an individual(s) or a body corporate (e.g a Trustee) to access, administer and distribute the assets owned by the deceased during their lifetime.
This authority is given in form of a legal document called a Grant, which can be in form of a Grant of Probate (where the deceased died testate i.e., leaving behind a valid Will) or Letters of Administration (where the deceased died intestate i.e., without leaving behind a valid Will). The grant is made to the Personal Representatives of the Estate. (i.e., persons charged with administering the estate of the deceased, depending on whether the deceased is testate or intestate. They are referred to as Executors and Administrators, respectively.)
Key Differences
| Feature | Will | Probate |
| Definition | A legal document stating how a person’s assets should be administered/distributed after death. | A legal process that validates a Will and grants authority for its execution. |
| When It Takes Effect | Upon the Testator’s death. | Upon Court approval (usually via the Probate Registry). |
| Who Handles It? | The Testator (during their lifetime). | The Personal Representatives (after the Testator’s death). |
| Legal Requirement | Must be in writing, signed by the Testator, and attested to by witnesses. | Requires Court approval and issuance of a Grant Document. |
| Effect if missing | Without a Will, assets are distributed according to other applicable laws (e.g., customary, Islamic, or statutory inheritance laws.) | Without Probate, the Personal Representatives has no legal authority to act on the assets of the deceased. |
Conclusion
Understanding the distinction between Probate and a Will is essential in estate administration. While both play a role in managing a deceased person’s affairs, they are separate legal concepts.
A Will outlines a person’s wishes for their estate, while Probate is the legal process of validating and executing those wishes. Recognizing these differences can help individuals better navigate estate planning and ensure a smoother administration process after death.
If you or someone you know is struggling to access the assets of a deceased loved one, call Meristem Registrars and Probate Services Limited today. We’re here to help you recover what’s rightfully yours, so you can focus on what truly matters—moving forward with hope and peace of mind. Get in touch with us today at [email protected] or call us at +2342012809250
