What is Probate?

What is Probate?

Probate is the process of applying to the court to confirm that a will is valid and can be acted on. The executor of the will is the person who has to apply for probate.

What is an Executor?

An executor is a person who makes sure that a will-maker’s possessions are dealt with after they die.

What is a Grant of Administration?

If a person dies without a will, or if an executor is named in a will but they refuse to act, then someone must apply to the court for a Grant of Administration. A Grant of Administration grants that person similar powers to an executor and allows them to deal with the deceased’s possessions.

What Does the Executor Have to Prove?

The executor must prove:

  1. That the will is the last one that the will-maker made,
  2. That the will is valid, and
  3. That the person applying for probate should be put in charge of the will-maker’s assets and debts.

If these requirements are proven (in addition to various notification and administrative requirements), then a grant of probate will be issued by the courts. A probate grant shows that the executor has the right to deal with the deceased’s property.

What Happens After a Will Has Been Probated?

After a will has been probated, the executor can handle funds, transfer property titles, and take other steps to deal with the will-maker’s property, including paying debts and distributing to the beneficiaries their inheritance.

Do All Wills Need to Be Probated?

A will usually does not have to be probated if the estate is small (under $25,000), unless the will-maker owned land or property.

Why Would I Want to Avoid Probate?

There are fees associated with probating a will. These fees are a form of tax and can quickly add up. Many people try to keep their estate small to avoid these probate fees.  They arrange to have certain assets pass to beneficiaries outside of the will so that they don’t have to pay probate tax.

What Are Probate Fees?

Probate fees are paid to the court based on the gross value of the estate and are calculated on a percentage basis.

How Much Are Probate Fees?

  • The initial probate application fee charged by the Court, is $200.
  • If the value of the estate is between $25,000 – $50,000, then 0.6% of the estate value is charged in probate fees.
  • If the value of the estate is over $50,000, then 1.4% of the estate value is charged in probate fees.
  • There are often other fees for receiving documents from the court (ie. the probate grant)

Does an Executor Have to Probate a Will Themselves or Can They Hire a Lawyer to Do it?

You can hire a lawyer to handle all aspects of probate for you.   You can also hire a lawyer to do part of the work while you do other parts.   It is common to hire a lawyer to handle Probate and Letters of Administration.

If I Hire a Lawyer, Who Pays for the Lawyer?

The lawyer is paid from the estate of the deceased person.   The executor does not pay the lawyer personally with their own money.

If I Hire a Lawyer to Help with Probate, Will I Still Get an Executor’s Fee?

The Executor does usually still get a fee from the estate even though they hired a lawyer.  The fee is proportionate to the amount of work they did personally, versus how much the lawyer or other people did.

What If I Need Help Probating a Will or Advice on Avoiding Probate Fees?

Probate applications and Letters of Administration can quickly become quite complex. It can help to discuss the process and requirements with a local probate lawyer.

Please contact us at 778-475-8444 or melody@martinestate.ca.