What is Probate?
Understanding the Probate Process
When a person dies, their assets are transferred to their beneficiaries in one of two ways: either in accordance with the deceased’s wishes, per their Last Will and Testament (the “Will”) or, if the deceased left no valid Will, then in accordance with the provisions of the Succession Law Reform Act (SLRA). This is referred to as “intestate succession.”
To transfer ownership of assets, such as real property, bank accounts, etc., a judicial process called probate may be required. Probate is a court procedure which appoints a legal representative of the estate and grants that representative the legal authority to act on behalf of the estate in collecting the deceased’s assets, paying their debts, and distributing the remainder according to either the deceased’s Will or according to the provisions of the SLRA.
Essential Documentation for Probate Application
As the result of a probate application, the court issues a Certificate of Appointment of Estate Trustee (the “Certificate of Appointment”), which proves the authority of the legal representative, called the Executor of the Estate (the “Executor”), to manage the assets of the estate.
If the deceased prepared a Will, they will have named an individual they wish to act as their Executor. This individual may apply to the court for a Certificate of Appointment. In cases where the deceased left no Will, the SLRA provides a list of individuals eligible to apply, based on marriage or kinship with the deceased.
What documents are required for Probate
To apply to the court for probate, the applicant must provide the following:
- the original Will if one exists;
- the original Affidavit of Execution of the Will (note that for older wills there may be difficulties in obtaining the Affidavit of Execution if it is not attached to the Will);
- the Proof of Death Certificate;
- the completed Application for a Certificate of Appointment, containing, among other things, the value of the assets of the deceased as at the time of death;
- A bank draft in payment of the Estate Administration Tax.
The Estate Administration Tax is calculated based on the value of the assets of the deceased at the time of death that will go through probate. It is about 1.5% of the value of the estate and is payable to the Ministry of Finance. No estate administration tax is payable if the total value of the estate is less than $50,000.00.
Do all assets require probate?
Not all assets of the deceased must go through probate. Some examples of assets that do not necessarily have to go through probate are:
- Registered accounts and insurance proceeds with designated beneficiaries;
- Jointly owned assets with right of survivorship;
- Gifts made during a person’s life;
- Assets in inter vivos trusts, (those trusts created during one’s lifetime);
- Ownership of shares in a company if they are addressed in a secondary Will.
Careful estate planning during your lifetime is an essential step in ensuring the smooth administration of your estate. Moreover, estate planning is a useful tool that may minimize the amount of estate administration tax that will have to be paid during probate.
The lawyers at Malicki Sanchez are skilled in estate planning as well as guiding executors through the probate process and would be happy to assist you.
Blog by Victoria Melnyk
