Probate: A simple guide

Probate. What is it? It’s a term that often pops up when dealing with estate planning.  A term that confuses many, it simply describes a legal process to ensure the authenticity of a last will.  Probate at its core, is a legal process that ensures a deceased person’s assets are distributed by their Last Will. If there is no Last Will, the provincial or territorial laws kick in. Probate laws can vary, depending on where you live, especially in Canada.

What is Probate?

Probate is the official recognition and validation of a person’s Last Will by the court system. This process allows the Executor (the person who follows the wishes as outlined in the Will) or administrator (if there is no Last Will) to carry out the deceased’s wishes.

When is Probate Required?

Probate isn’t always necessary. The requirement for probate depends on several factors: the value of the deceased’s assets, the province or territory in which the deceased lived, etc.

 When Probate becomes valid:

1. The Value of the Estate: If the estate’s total value falls below a certain threshold (which varies by province/territory), probate may not be required in many provinces. The fight over smaller estates can be settled without going through the headache of Probate.
2. The Nature of Assets: Certain assets can completely bypass the Probate process: jointly owned property, life insurance policies with designated beneficiaries, and registered retirement savings plans (RRSPs).
3. A Valid Will: If there is a Will, Probate is usually necessary. You do not need to confirm the validity of the Will. You don’t need to provide legal authority to the Executor. If there’s no Will (referred to as “intestacy”), Probate may still be required to appoint an administrator who distributes the deceased’s assets.

The process of Probate:

1. Initiation: The first step is to file an application with the court in the province/ territory where the deceased person lived. This application typically includes the Will, an inventory of the assets and debts, and various legal forms.
2. Providing notice to creditors and other interested parties: Once the application is filed, the court requires notice to be given to potential creditors and interested parties. The creditors then have the opportunity to make financial claims against the estate, if they believe they are owed money.
3. Grant of Probate: Once the court is satisfied that all legal requirements have been met, the courts issue a Grant of Probate. This document officially recognizes the validity of the deceased’s Last Will. The court grants authority to the Executor or administrator to manage and distribute the estate.
4. Asset Collection and Distribution: With the Grant of Probate in hand, the Executor or Administrator can collect and manage the deceased person’s assets. They are responsible for paying any outstanding debts and distributing the remaining assets as per the wishes outlined in the last will.
5. Reporting to the Court: Throughout Probate, the Executor or administrator may need to provide periodic reports to the court. This provides detailed reports of the Probate progress to the courts.  
6. Closing the Estate: Once all of the debts are paid, assets distributed, and any court requirements are met, the Executor or Administrator can close the estate.

Costs and Fees

Probate comes with a plethora of costs and fees. These costs can include court filing fees, legal fees (if you hire a lawyer), and Executor or administrator fees. The exact costs can vary depending on the province/territory the deceased resided in. Keep accurate records of all of the expenses related to the Probate. It’s possible that these costs can be reimbursed from the estate’s assets.

Probate in Canada may seem daunting, but it is a necessary legal process. It ensures the deceased’s assets are fairly distributed. Understanding the basics of probate and when it’s required can help you navigate the process with confidence.