Steps leading to probate

Despite the fact that we lawyers toss around probate terms all the time, the probate process remains a mystery to many non-lawyers. When I'm giving a seminar, one of my most frequently-heard questions is "what is probate anyway?' So in this post I'm going to give a very generalized list of the steps an executor would take to get probate in Canada, and what he or she would then do with the probate. I say "generalized" because each of these steps includes dozens of smaller tasks. For a more detailed list of executor's duties, see my earlier posting called What are executor's duties?

1.  Find the original Will. Read it to determine who should be acting as executor and who is receiving something from the estate as a beneficiary. Get the evidence you need to establish that the Will was correctly executed.

2.  Prepare an application for probate, either by yourself or with the help of a lawyer. This contains the original Will and several other documents that paint a detailed picture of the deceased, his or her family, and his or her financial situation. List all beneficiaries along with their addresses and birth dates. Perhaps the most time-consuming part of this step is preparing the inventory of the assets and debts. This involves contacting banks, insurance companies, land titles offices, financial advisors, credit card companies and possibly many others to confirm the existence and value of assets and debts.

3.  Notify the beneficiaries of their inheritances. The procedure for this varies from place to place but generally involves sending a prescribed notice by registered mail. While you're at it, it's a good idea to place an obituary in the newspaper, and possibly a notice to creditors.

4.  Submit your application to the court, pay the probate fee, and wait until the court approves it and issues a Grant of Probate. In the meantime, take valuables into safekeeping, check that vacant property is insured, and do communicate with beneficiaries who want to know why it's taking so long.

5.  Open an executor's bank account. Deposit money that comes in and use that to pay the debts of the estate. Keep detailed records. Keep the money separate from your own. Apply for government death benefits and any private benefits available through pensions etc.

6.  Once you have the Grant of Probate, collect in the deceased's assets. Depending on the nature of the assets, this could involve selling a house, transferring a business, collecting proceeds from an insurance company, cashing in investments or many other steps. Settle any disputes (sounds easy, doesn't it?). Set up the trusts directed by the Will. Notify any joint tenants or designated beneficiaries of the death of the deceased.

7.  Get an accountant to prepare tax returns for the deceased and for the estate. Pay the taxes. Request a Tax Clearance Certificate.

8.  Once the Tax Clearance Certificate is received, prepare financial statements for the residuary beneficiaries. Calculate your payment as executor. Calculate how much has to be held back, if any. Calculate what each beneficiary will receive. Provide the financial statements together with releases to residuary beneficiaries. Argue over your fee. When everyone has agreed and signed their releases, pay the beneficiaries and yourself.

This entire process should take you 6 to 12 months (known as the "executor's year").