what is probate? what you need to know.

You may be asking this question because you have been appointed an executor in a will, or because you’ve received a notice of proposed application. This article will cover the basics of what probate is, who can apply for it, and what the process is.  

What Is Probate?

When a will-maker passes away and leaves property to their loved ones, their will must be probated. This is a legal process in which the Supreme Court of British Columbia validates the will, accepts it as the true last testament of the will-maker, and gives the executor of the will the power to deal with the estate.

Who Applies for Probate?

When a will-maker has passed, the person they have named as their executor in their will (the person who manages their estate) can file an application in the Supreme Court of British Columbia to probate the will. During this process, the executor becomes the “applicant”.

A person named in the will as executor may not be able to (or might not want to) accept their position as executor, so a will-maker should always name an alternative executor. To learn more about what it means to be an executor or to name someone as an executor, read our post: what is an executor?

What is the Probate Process?
To probate a will, an applicant must file the original will, and several supplementary documents with the Probate Registry in the Supreme Court of British Columbia. These documents will give information regarding the will-maker, the applicant, and the estate, and will show the registry that notice of the application has been given to the appropriate people. Some of the documents in the application need to be sworn with a lawyer or notary.

An applicant can complete the application personally or retain a lawyer to complete the probate application and pay the lawyer’s fees from the estate. An executor may also be entitled to be paid from the estate for their time spent administering the estate. However, while an applicant can complete the probate process without legal assistance, this can cause significant delays, result in costly errors, and could even result in the executor being sued by the inheritors on behalf of the estate.

Does I Need to Apply for Probate?

Whether probate is required depends on the property in the estate. To deal with real estate gifted under a will, you always need to go through probate. However, if the estate is under $30,000, you may not need to go through probate. The threshold for banks to release bank account funds varies from branch to branch (for example, one bank may release $30,000 without a Grant of Probate, while another may require one for funds greater than $20,000).

What if There is No Will?
If you want to administer the estate of a person without a will, or the executor named under a will has refused to act, you will need to apply for a Grant of Administration. The process for obtaining a Grant of Administration and determining who is entitled to inherit where there is no will is complex, and you should contact a lawyer to prevent any mistakes.

How Can I Get Help Probating a Will?
Incorrectly filing for probate can cause significant delays, result in costly errors, and could even result in the executor of an estate being sued by the inheritors on behalf of the estate.

As a result, executors often retain a lawyer to assist them with court applications and estate administration and pay the lawyer from the estate.

If you are unsure about what you need to do as an executor or how to apply for probate, you should speak to a wills and estates lawyer.

This blog post provides legal information, but is not a substitute for legal advice. If you have a question about probate, need help with probating a will, or questions about another legal matter, contact Naz Khodarahmi for a complimentary consultation. You can book a consult through www.macushlaw.ca through our booking system or contact Naz at [email protected] or 604-612-8024.