What is probate? What does it mean to probate a will?

will, probate

In certain situations (for example, to access a deceased’s bank accounts), a legal document must be issued by a Court proving that a Will is valid and the person named as executor within the Will has the authority to act on behalf of the estate. In most provinces and territories, the court issues a certificate called ‘Letters Probate’, ‘Grant of Probate’, or ‘Grant of Certificate of Appointment of Estate Trustee With (or Without) a Will’. The process is commonly referred to in short as “probate.”

The process for verifying Wills in Quebec differs from the rest of Canada.

If the deceased left a Will

If the deceased left a valid Will, the document will (hopefully) explain how the testator’s possessions, money and property should be distributed. The original Will must be located and may be stored in the person’s home, bank, safety deposit box or with their lawyer.

The executor named in the Will is responsible for obtaining the Letters Probate (or Certificate of Appointment of Estate Trustee With A Will, in Ontario). A probate application form must be completed and submitted to the Courts, along with required documentation. This process varies slightly from province to province. For more information regarding probate in the specific province of residence (determined with reference to the deceased), please click the name of the province below.

If the deceased did not leave a valid Will

If the deceased did not leave a valid Will, they are said to have died “intestate.” Generally, when a person dies intestate, an application must be made to the Court. The Court will administer and distribute the estate according to specific laws called the laws of intestacy. These laws determine who is eligible to receive assets in the estate.

What is estate administration? Is it different than probate?

Although the naming varies slightly between provinces, courts generally have three different grants they can issue when a person applies to administer a will. It is the responsibility of the person applying to determine what type of grant they are applying for and apply for the appropriate grant. Each type of grant will have different application requirements.

  • If the will names you as the executor, you will apply for a Grant of Probate (or in Ontario, a Grant of Certificate of Administration with a Will).
  • If the will doesn’t name anyone as executor or the person named as executor is unable or unwilling to act, it will be necessary to apply for a Grant of Administration with Will Annexed (or in Ontario, a Grant of Certificate of Administration with a Will).
  • If the deceased died without a will, you will need to obtain a Grant of Administration (or in Ontario, a Grant of Certificate of Administration without a Will).

There are other grants for more complex situations, which may include replacing an acting executor, or recognizing a foreign grant of probate from another province or territory. It is prudent to seek legal assistance prior to making applications to a Court.

Most provinces will not issue grants of administration to people who reside outside the province. In provinces where grants of administration are made or made to people who reside outside the province, the court may require some form of security or bond to be placed by the person assuming the role of administrator. These requirements vary from province to province and a TEP should be consulted regarding the rules specific to the applicable jurisdiction.

Do I need a lawyer to probate a will?

Wills vary substantially in terms of size and complexity. The requirement to perform probate and the complexity of the probate process will vary with the size and complexity of the estate. Applying for probate is a formal court process. Although most probate applications do not require a formal appearance in Court, there are a number of legal forms that must be filled out correctly. Determining which forms are necessary, completing them accurately, and enclosing appropriate supporting documentation can be daunting. Legal assistance is recommended, although not required for simple estates.

If an estate is contested by a beneficiary or involves administration outside the scope of what is discussed in this overview, executors should strongly consider seeking formal legal advice.

Is it necessary to probate a will?

Not all Wills require probate. The types of bequeathed property that need to go through a probate process vary substantially from province to province. Generally, property or bank accounts that have joint names on the account will not require probate (although this may pose other challenges in both estate administration and during the lifetime of the person who holds the joint account).

Information on probate by province

Disclaimer

An article of this kind can never provide a complete guide to the law in these areas, which may be subject to change from time to time. The opinions and suggestions made within this article should not be interpreted as specific advice in relation to any particular individual or individuals. Neither STEP, the article author or their firm accept responsibility for any loss occasioned by someone acting or refraining to act on the basis of the opinions and suggestions contained in this article. More