A common question lawyers are frequently asked is, “what is probate?” When someone passes away in British Columbia, typically the deceased’s sole assets (i.e. bank accounts and property) cannot be dealt with until the deceased’s personal representative (i.e. the executor if there is a will and the administrator if there is no will) applies to the court for a Grant of Probate.
A Grant of Probate is essentially a certificate issued by the court that certifies that the deceased’s will is valid. Financial institutions and the Land Title Office generally require that the executor produce a Grant of Probate, prior to allowing the executor to deal with the deceased’s assets.
In order to have the court certify that the will is valid, the executor must submit a number of documents to the court for the court’s review. These often include, but are not limited to, the following:
- An affidavit which has general information about the deceased, the executor and the probate application;
- An affidavit of the executor stating the amount and location of the deceased’s assets and liabilities; and
- An affidavit stating that the beneficiaries have been made aware of the probate application.
A notice is then provided to the beneficiaries notifying them of the probate application and their rights. Once the court has reviewed and approved the probate application, the court will advise the executor what probate fees are payable by the deceased’s estate. Once the probate fees are paid, the Grant of Probate will be issued and the executor may begin dealing with the deceased’s assets by:
- Calling in (or liquidating) assets;
- Paying debts of the deceased and the estate;
- Paying taxes for the deceased and the estate;
- Distributing assets to the beneficiaries; and
- Applying for a clearance certificate from CRA.
If someone passes without a will, the process described may still be required (depending on whether the deceased individual had any assets in his or her sole name and the value of such assets); however, rather than applying for a Grant of “Probate,” an interested party would need to apply to a court to (a) be appointed as the “administrator” (as opposed to the “executor”) of the deceased’s estate and (b) to request that the court issue a Grant of “Administration” (as opposed to a Grant of “Probate”).
This is a brief summary of one of several steps involved in dealing with a deceased individual’s assets. Lawyers specializing in this work, not only act as legal counsel for executors of estates but we also act as executors for estates.