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Friday, July 23, 2010

What is probate?

Probate is a process of submitting a deceased person's Will to the court and obtaining a court order called a Grant of Probate. Along with the original, signed Will, the executor sends a group of documents that together are called an Application for Probate. The Grant of Probate confirms the validity of the Will, confirms that the executor is the person in charge of the estate, and confirms that all parties, including beneficiaries, creditors, banks, land registries etc, should follow the instructions and wishes set out in the Will.

Some of the information sent along with the Will includes:
- facts about the deceased person's age, marital status etc
- details of the Will and/or Codicil that is being probated
- information about the family of the deceased person
- an inventory of the deceased's assets and debts
- evidence that the Will was properly signed and witnessed
- proof that the executor who is applying is the right person to do so
- a schedule of what each beneficiary under the Will is going to inherit
- proof that notice of the application was given to everyone entitled to it

The above list is simplified, but gives a general idea of what the Application for Probate is all about.

If there is no Will, or the Will is invalid, the person who wants to be appointed as being in charge of the estate will apply to the court for a Grant of Administration rather than probate. Once the person is appointed by the court, he or she has the same authority and responsibility as an executor. The estate would be distributed according to intestacy laws.

If there is a Will that is valid except for the executor appointment (e.g. the executor named has passed away and there is nobody else named), someone may apply to the court for a Grant of Administration With Will Annexed. In this case, the administrator would be appointed to fill the shoes of the executor and would follow the Will's instructions.

When the Application for Probate is filed with the court, there is a fee that must be paid. In the "Links" section of this blog I've linked to a chart of probate fees across Canada. I encourage people to learn about the fees that apply in their province, as I regularly see estate planning mistakes that people tell me were made to "avoid probate". See my earlier blog post here about the pitfalls of trying to avoid probate without proper advice.

Not every Will must go through the probate process. Whether or not probate is required will depend on the type of assets owned by the deceased, how they are owned (joint, individually etc), the value of the assets, the clarity of the Will, and other issues. If anyone contests the Will or if any parts of the Will are unclear, the executor will have to go through probate.

Probate is not a quick process. The gathering of information for the inventory is a slow process. Also, once the documents are complete and filed with the court, you can expect to wait up to six weeks for te documents to be processed by the Clerk of the Court and signed by a judge.

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