One of the first steps required of an executor or administrator is to determine the deceased person’s assets and liabilities. In most cases, this will indicate whether a grant of probate is required.
Probate is a grant from the Supreme Court confirming the authenticity of the deceased’s last will, and giving the executor appointed in the will the authority to act. If the deceased died without a will, a party can apply for a grant of administration and, in that case, will be appointed administrator of the deceased’s estate.
After someone is appointed as executor or administrator, they have authority to deal with the deceased’s assets. They are responsible for payment of all debts and for distributing the remaining assets in accordance with the will, or as set out in the Wills Estates and Succession Act if the deceased did not have a will.
When is Probate Required?
Probate is not required in all situations. If a deceased’s assets do not include real property and the total value of all assets is under $25,000, a grant of probate may not be required.
A common example of this is when spouses hold all or most of their assets jointly. All jointly held assets would transfer to the surviving spouse automatically and would not form part of the deceased’s estate. If the total value of assets held solely in the name of the deceased is under $25,000, a grant of probate may not be required.
When an estate includes real property that was held solely in the deceased’s name, the Land Title Office will require a grant of probate or administration prior to transferring the property to the executor or administrator to dispose of in accordance with the will or the Will Estates and Succession Act.
In most cases, financial institutions will require a grant of probate or administration if the deceased’s financial assets total more than $25,000. This total does not include jointly held accounts and registered investments and accounts.
In some circumstances, probate will still be required when the value of the estate is less than $25,000.
Applying for Probate
After determining the assets and liabilities of the deceased, the executor must prepare the application forms prescribed by the Supreme Court Civil Rules. These forms include a “Statement of Assets, Liabilities and Distribution”, which sets out all of the deceased’s assets and liabilities, and corresponding values. Probate fees will be determined based on the values included in this document.
Prior to submitting the application, notice must be provided to all beneficiaries, any other person named as executor or alternate executor, all parties with standing to apply to vary the will, and all parties who would have inherited under the Wills, Estates, and Succession Act had there been no will. For applications for administration, notice must be provided to all intestate successors and to all creditors with a claim over $10,000. This notice must be provided at least 21 days before the application is submitted to the Court.
Most applications are processed without the need for a hearing. In some circumstances, a judge may require the executor or lawyer acting for the executor to appear in court to address any questions or concerns prior to issuing the grant of probate or administration. Alternatively, if the application documents require correction or further details, the Court Registry may notify the applicant and the application will be placed on hold until the request is addressed.
Probate fees are payable to the Minister of Finance and must be paid to the Supreme Court Registry in order to release the grant of probate. The first $25,000 of an estate are not subject to probate fees. The first $25,000 to $50,000 of an estate’s value are subject to probate fees are $6 for each $1,000. This increases to $14 for each $1,000 over $50,000.
If further assets are discovered after probate has been granted, an executor has an obligation to disclose this to the Supreme Court and to pay additional probate fees.
Probate fees are different from income tax, which will be payable throughout the course of administration of an estate. An executor or administrator should also consider legal and accounting fees, which are also distinct from probate fees.