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Probate is a legal process that provides formal approval of a deceased person's
Will to confirm that the submitted Will is the valid last Will of the deceased. It also
appoints the person, persons, or trust company who will act as the Estate
Trustee(s) of the estate.
Essentially, probate is the court process that gives the Estate Trustee(s) the authority to act on behalf of the deceased person.
The probate process has three stages: 1. Preparing the application,
2. Awaiting the "Grant" of Probate, and
3. Administering the estate.
Preparing the Application
Preparing the application requires time to gather information about the nature of
the estate's assets, the identities and locations of the estate beneficiaries, and the applicable amount of Estate Administration Tax. Difficulties contacting the Estate Trustee can slow down the process, so it is in the best interests of the estate and the estate's beneficiaries to be responsive to the lawyer's requests for information. The size and complexity of the estate can also affect the application timeline.
Awaiting the “Grant” of Probate
Once the probate application has been prepared and filed, it takes time for the
court to process and return the application. The length of time required can vary
widely depending on the court where the application was filed.
Administering the Estate
The Estate Trustee has a year to administer the estate after probate is granted,
but it can take up to six months to receive a clearance certificate from the Canada
Revenue Agency, which can extend the process.
When Probate Is or Is Not Required
Probate is not always a necessary process, depending on the circumstances of
the deceased and their estate, but it is often a good idea to undertake it. Probate
is necessary when court approval of the vesting of the deceased's assets in the
estate trustee is necessary, such as to propound the Will, or the choice of Estate
Trustee. Some estates, such as those involving the "first spouse to die" or those
that do not involve real estate or significant financial assets, do not necessarily
need probate.
You cannot avoid probate just because the estate is small, mutual agreement of
the beneficiaries, only having a sole beneficiary, or because the only assets of the
estate happen to be cash in bank accounts or investments. Financial institutions
have no obligation to waive probate under any circumstances, though some may
waive probate for small estates when there is no obvious conflict among
beneficiaries.
The Role of a Lawyer
Retaining a lawyer is not legally required for an Estate Trustee, but the complexity
of the probate process makes it an excellent idea to do so. The role of a lawyer is
to deal with the courts and the required paperwork, which can be an intricate and
frustrating process. Reasonable professional fees incurred assisting the Estate
Trustee are usually borne by the estate, and not by the Estate Trustee themselves.
If the actions of the Estate Trustee are likely to be questioned, closely scrutinized,
or litigated, it is strongly recommended that the Estate Trustee seek professional
assistance with the probate process.
For additional information on this or any other Estate-related matter, feel free
to contact our E is for Estate team. CLICK HERE
Erin Watson, J.D. E is for Estates
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