The word probate refers to the legal process required to validate a Will and ratify the proposed administration of an estate. It is a legal term that often incites worry in concern in people faced with the prospect of probating an estate – but it doesn’t have to. Here are 3 simple concepts to explain what a probate really is, whether you need one and how to go about doing one.
Step 1: What is a Probate?
“Probate” is the legal process of validating a Will. It is completed through a formal court application and for that reason it is very technical in nature. There are certain forms that must be filed, and they vary with the particular circumstances of the estate. The goal of the application is to get a Grant of Probate – which is essentially a Court Order that validates the Will and ratifies the proposed administration so that institutions holding assets of the deceased will follow your directions as the executor. With a Grant of Probate in hand, you have the power of the Court behind you; you can now assume legal ownership of the deceased’s assets and transfer them to beneficiaries. Without a Grant of Probate you can well imagine what would happen if I attended upon a bank to ask for someone else’s money to be transferred to me so that I could give it away - the bank would surely ignore my request, and (perhaps) politely ask me to leave. But, with a Grant of Probate proving that I am the Executor of the Estate, they are required to transfer ownership of the account to me, so that I can disburse the money in accordance with the directions in the Will. If the Bank doesn’t follow my instructions they are in breach of a Court Order.
Step 2: Do I need to get a Grant of Probate?
It may surprise you to learn that not all estates must be probated. It all comes down to what assets were owned by the deceased, and which institutions have control over them. For example, if the deceased had a bank account, in his or her sole name with a large sum of money, the bank will require a probate to authorize distribution at the direction of the executor. If the bank account had a relatively small amount of money, you may not need a probate – you may be able to convince the bank to give you the money based upon your promise to protect them in the event of a challenge to your authority (an indemnity). Or, if the account was owned jointly with another person, the account will pass by survivorship to the surviving joint owner.
Another instance in which a probate is not required is for assets that have a named beneficiary. This is common with life insurance policies, RRSPs, TFSAs, Segregated Funds, etc. In these cases you need to provide a relatively minor amount of paperwork (a death certificate to prove the death of the owner of the asset) and the institution will transfer funds or pay the policy to the beneficiary named in the document.
In most cases, a deceased will have a combination of assets which result in some being a direct payment without a probate and others that will require a probate. In this case the non-probateable assets can be dealt with quickly and the probateable assets will be held up, or frozen until the probate is in hand.
Step 3: I need a Grant of Probate, how do I get one?
An application for a grant of probate is a technical legal process that requires certain forms be filed with the Surrogate Court. The forms that are required will vary with the circumstances of each case, but essentially you need to explain to a Justice: (i) who it is that has died; (ii) who has a legal benefit under the Will; (iii) who may have a claim under the law; (iv) a complete list of assets and debts; and (v) the proposed distribution in the Will.
Technically, you don’t NEED a lawyer to assist. The application is something you can undertake on your own. Court forms are available on-line, as are many self-help guidelines. But be careful – many of these forms and self-help guides are prepared for a different jurisdiction and won’t work in your home jurisdiction. Secondly, our Court Clerks are notoriously thorough, if you aren’t using the proper form, or have not filled it out correctly, your application will get bounced and you are back to square one. Many Court Clerks are very helpful, but they are not authorized to provide you with legal advice. For the average person, taking on a probate application is a time consuming and frustrating process. An application can be bounced many times before it is finally in a proper form. Certainly, some circumstances will be beyond the average person’s ability. Much like as a private homeowner, I can do a certain type of home repair – change locks, patch and paint a wall – but if a task requires an electrical or plumbing repair, I call in a professional.
As a lawyer with over 25 years of experience in Wills, Estates and Probate law, I can say that I have handled some exceptionally difficult estates. I won’t say I have seen it all, because there is always something unique to every estate! At Elite Counsel we strive to administer each estate as quickly and cost effectively as possible. For more information on topics related to probate, please see other entries in my blog. To retain my services, please give me a call for an initial, no cost, no obligation consultation and download my streamlined information checklist found here.