Why don't all wills need to be probated?

Recently a regular reader of this blog (looking at you, Webeye) asked me why probate of a will is not required every time a testator passes away. I thought a discussion of that topic would be interesting for all of you readers, so here goes.

The authority to act as an executor comes from the will, not from the probate of the will. Therefore, if the administration of the estate can be accomplished without probate of the will, the executor is entitled to skip the probate process. Such a case might be where the testator who died owned a house jointly with his wife and named her the beneficiary of his RRSP and had no other major assets. Given that scenario, it is unlikely that probating the will would be of any benefit to the estate.

Perhaps it would be useful to understand why going through the probate process (and by this, I mean the courts) is sometimes necessary. Generally speaking, the reasons that give rise to the need for probate are:

- There is real estate in the name of the deceased alone. Land registries and land titles offices will require that a will is probated before they will allow the executor to sell or transfer land that is owned solely by the deceased. This is because the probate order is an order of the court declaring the will to be valid and to be the document that all are to recognize as the will. It eliminates the possibility that someone will later come forward with a different will and accuse the land registry of illegally transferring property. In other words, the probate order indemnifies the land registry.

- The assets are of a high value. When any sort of asset has a high value, even if it's simply a bank account with a large balance, the bank or investment company will almost always insist that the will is probated before they will release funds to the executor. This is for the same reason as I described for the land registries; the probate order indemnifies the bank from someone coming forward later and saying they have a valid will for the deceased.

- There is something questionable about the will. When there are mistakes in a will or language that can be read two ways (very common in home-made wills but it happens in lawyer-made wills too), it's not within the executor's powers to interpret what it means. Only a judge can do that. If the will is not correctly signed or witnessed, again, it isn't within the executor's power to fix it. In such cases, a will might be sent to the court for a decision by a judge as to whether it is valid, or whether it needs to be litigated or interpreted.

- There are claims or potential claims against the estate. Sometimes the point is simply to start a limitation period running. For example in some places a spouse has six months from the date of probate to bring a claim against the estate. If you never file for probate, that claim period stays open. In other cases, probate is requested simply to ensure that there is a court file open so that the litigants have a way to approach the court.

If things are straightforward and none of these situations apply, it is possible to carry on with an estate without asking the court to probate the will. Keep in mind that these are general rules, each with dozens of possible applications. There is also the matter of keeping the peace among contentious family members. Last year I had a case in which an executor who had none of the above reasons to probate the will was accused - by way of a lawsuit - of concealing assets by deliberately avoiding probate, So sometimes you just do what you have to do to get the estate finished.

If you are in doubt about whether a will needs to go to probate, take it (along with any codicils, lists, notes, etc) to an estates lawyer for a chat.