What Is Probate and How Does It Work?

Probate is an important component of estate administration. When grieving for a loved one, it may be difficult to think about property division, financial matters and legal issues. Nevertheless, probate can play a significant role in your loved one’s estate. That is especially true if the deceased has left behind a significant estate or died intestate (without a Will). 

What Is Probate?

Probate is a court procedure to confirm the authority of an Estate Trustee named in a Will. If a Will was not prepared, then probate gives a person authority to act as the Estate Trustee. A Probate Certificate can also be used to confirm that the deceased’s Will is in fact their last valid Will. Formally, probate gives an executor or an administrator the authority to wind up a deceased’s estate, which may involve ensuring that property is administered to the beneficiaries per the deceased’s wishes or settling taxes and outstanding debts. 

As probate can be complex, hiring an experienced estate administration lawyer can help executors navigate the process and honour the deceased’s wishes. 

How Does the Probate Process Work?

If you are an executor or are planning your estate, here are the general steps involved in the probate process:

Preparation of Probate Application

Executors must complete an application to file for a Certificate of Appointment of Estate Trustee. During this process, the executor will require the following documents:

  • An original death certificate,
  • Names and contact information for all beneficiaries,
  • Completed Court forms,
  • If applicable, the original Will of the deceased, and
  • If applicable, a bond. 

Submission of Application

The completed application and supporting documentation must be submitted to the Superior Court of Justice. Applications are typically submitted in the province in which the deceased resided or owned property. 

Payment of Fees

The cost of probate differs depending on the province and size of an estate. The executor is responsible for paying the fees associated with probate, which are normally taken from the deceased’s estate.

The probate process may take a few weeks to a few months or longer. The time depends on the province, the Will’s complexity, the estate’s size and whether the Will is contested. 

At the end of the process, executors receive a Certificate of Appointment of Estate Trustee. An executor may not administer an estate until they receive a Certificate of Appointment of Estate Trustee when probate is required. 

Is a Probate Always Necessary?

The probate of an estate may not always be necessary. Many estates not comprising financial assets or real property don’t need to be probated. However, land registries, banks and other institutions typically require legal confirmation that an executor is authorized to transact business on a deceased’s behalf. That said, whether to initiate probate or not is largely dependent on the nature of the estate and whether any of the estate’s beneficiaries have cause to challenge an executor or their actions. 

These are some circumstances in which probate of an estate may not be necessary:

  • all assets are jointly held,
  • assets (e.g. insurance policies) have a pre-designated beneficiary,
  • assets are in a trust
Do You Need Help with Your Estate Plan?

Probate can be complicated, lengthy and costly, so estate planning can greatly reduce the burden on your loved ones. If you require help with probate or planning your estate, contact GS Brar Law. Our estate administration lawyer can help you navigate the legal process. 

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