When someone passes away, a Will provides valuable guidance about how their assets should be distributed. However, it’s common for questions to arise about whether it’s possible to see or obtain a copy of the Will before the probate process begins. Whether you’re a family member, a beneficiary or someone with an interest in the estate, understanding how Wills are handled before probate can help to clarify your position and rights.

Here, the Wills, trusts and probate team at JMW explain the rules surrounding access to Wills before probate is granted, outlines the steps you can take to request a copy, and addresses what to do if you’re unable to obtain one.

Understanding the Legal Status of a Will Before Probate

Before probate is granted, a Will remains a private document. Probate is the legal process that confirms the validity of the Will and gives the executor the authority to act on its instructions. Until this step is completed, access to the Will is generally limited to specific individuals.

The executor named in the Will has the primary responsibility for safeguarding it and ensuring the deceased person’s wishes are carried out. Beneficiaries named in the Will may have an interest in its contents, but they don’t automatically have the right to see it before probate is granted. Similarly, family members who are not mentioned in the Will or individuals who suspect they may be beneficiaries cannot freely access the document at this stage.

This confidentiality can be frustrating for those seeking clarity on an estate, but it helps to protect the deceased’s wishes until the Will becomes a public record during the probate process.

Who Can Request a Copy of a Will Before Probate?

Access to a Will before probate is restricted, but there are certain situations where individuals may request to see it:

• Executors: executors named in the Will have the legal right to access it before probate. They need to review the document to begin their duties, including preparing for probate and estate administration.
• Beneficiaries: if you are a named beneficiary, you may want to know what the Will says about your inheritance. However, this depends on the executor’s willingness to share information. There is no legal obligation for the executor to provide a copy of the Will before probate unless you pursue further action.
• Family members or interested parties: if you’re not named in the Will but believe you have an interest in the estate (for example, if you suspect you have been unfairly excluded, or if the Will contradicts earlier agreements), you can request access from the executor. However, they are not required to provide it unless ordered by a court.

If there are concerns about access or transparency, seeking legal advice can help you determine your position and any available options.

Steps for How to Get a Copy of a Will Before Probate

If you need access to a Will before probate is granted, follow these steps:

1. Confirm the identity of the executor: the executor has sole responsibility for the Will before probate. If you’re unsure who the executor is, check with other family members or trusted contacts of the deceased. The Will itself names the executor, but without direct access, you may need to rely on those close to the deceased for this information.
2. Contact the executor: once you know who the executor is, reach out to them to request access to the Will or details about its contents. Keep the communication polite and respectful, as disputes can delay the probate process and create unnecessary stress for all involved. Executors are more likely to share information if approached amicably.
3. Request mediation if necessary: if the executor refuses to share the Will, or if you feel your request has not been handled fairly, you can explore mediation. A neutral mediator can help facilitate discussions between you and the executor, potentially resolving the matter without further conflict.
4. Take legal action as a last resort: if all other options have been exhausted, you may need to apply to the court for disclosure of the Will. This is usually only necessary in cases where there are disputes over the executor’s actions, or where the Will’s contents are being deliberately withheld.

What Happens If You Can’t Get a Copy of the Will?

If the executor refuses to share the Will and you’re unable to resolve the matter informally, there are several options available to address the situation.

Consult a solicitor

One of the first steps you should take if you’re unable to obtain a copy of the Will is to seek expert legal advice. A solicitor can assess your specific circumstances and advise whether you have grounds to formally request access to the Will. They can also contact the executor on your behalf to encourage cooperation and explain the legal responsibilities executors have when handling the deceased’s assets.

If there are concerns that Inheritance Tax obligations or debts tied to the estate are being neglected, or if there is uncertainty about whether the executor is properly safeguarding the legal document, a solicitor can provide practical guidance and act as a mediator. In cases where informal approaches fail, your solicitor may recommend progressing to legal proceedings to resolve the issue.

Apply to the court

If direct communication and legal advice do not lead to a resolution, you may need to apply to the court to request a copy of the Will. This involves demonstrating your interest in the estate, which could include being a potential beneficiary, a family member or a creditor. The court will require evidence of your connection to the estate to verify your request.

When applying to the court, you’ll need to explain why access to the Will is necessary. For example, you might need to confirm whether you have been included as a beneficiary, understand how the deceased’s assets are being handled, or determine whether Inheritance Tax has been appropriately addressed. If the court grants your application, the executor will be legally required to disclose the Will to you.

Wait for probate

If legal proceedings are not a suitable option or you prefer to wait, you can obtain a copy of the Will after probate has been granted. Once the probate process is complete, the Will becomes a public record, and you can request a copy from the local probate registry.

To access the Will, you can submit a request to the probate registry along with the required fee. Alternatively, you can conduct a standing search, which allows you to be notified if and when the grant of probate is issued. This is particularly helpful if you’re unsure whether probate has been applied for or granted.

At this stage, the Will and other probate records, such as the grant of probate itself, become accessible to anyone who wishes to view them. While waiting for probate may not provide immediate clarity, it offers a guaranteed route to understanding the contents of the legal document and how the deceased’s assets will be distributed.

Considerations for Executors

Executors play an important role in managing an estate and carrying out the deceased person’s wishes, as outlined in their Will. However, handling these responsibilities can be challenging, particularly when balancing the need for transparency with the confidentiality of the legal document before probate is granted.

Communicate clearly

Beneficiaries and family members often have questions about the Will or the estate administration process. While you are not legally required to disclose the Will before probate is granted, providing some level of reassurance can help to avoid misunderstandings. For example, you might explain the steps involved in obtaining probate, the expected timeline and your role in managing the estate. Open and clear communication can go a long way in reducing tensions, especially in situations where Inheritance Tax obligations or estate debts may affect the distribution of assets.

Seek expert legal advice

Being an executor carries legal responsibilities, and it’s not unusual to encounter situations where you may be uncertain about your duties. Whether you are dealing with disputes among beneficiaries, questions about Inheritance Tax or concerns about how to handle specific assets, seeking expert legal advice can provide clarity and confidence. A solicitor experienced in Wills and probate can help you address complex matters, such as understanding the legal proceedings involved in probate, completing Inheritance Tax paperwork, or handling disagreements about the Will’s contents. Acting with the right advice can prevent delays and help you meet your obligations.