What is Probate?

Probate is a court process and the first step in the legal process of administering the estate of a deceased person leading to the orderly distribution and winding up of a deceased person’s property.

What does it mean to “probate” a will?

The word probate means to prove or validate. Probate is the procedure by which a will is approved by the court as the valid and last will of a deceased will-maker (sometimes referred to as the “testator” or “testatrix”). It also confirms the appointment of the person named as the executor in a will. In the case where there the deceased died without a will (“dying intestate” or an “intestacy”), the probate process allows surviving family members or others to be appointed as administrator of the deceased’s estate. The court provides the executor or administrator (the “personal representative”) an official court document called a representation grant (either a grant of probate or a grant of administration) as proof of his or her authority to deal with the estate.

When do you need probate?

It depends on the nature of the deceased’s assets, the beneficiaries and the will. Quite often the will is sufficient to give the personal representative all of the powers of action needed to settle the estate.

However, a grant of probate is generally required in order to transfer land or real property in BC. Some financial institutions may also require a grant of probate as proof of authority before they will deal with the personal representative.

The grant of probate provides official recognition of the authority of the personal representative over the deceased’s estate. The personal representative may need this proof to in order to recover money owing to the deceased, or to transfer certain assets in accordance with the instructions in the will. Certainly a grant of probate may be necessary if the personal representative expects that someone may dispute his or her right to act as executor.

Where there is no will, a grant of administration is usually required in order to deal with the deceased’s estate.

How does the executor obtain a grant of probate?

Each Supreme Court registry in British Columbia has a probate division which receives, verifies, and processes applications for representation grants. An application for a grant of probate or grant of administration includes a series of forms and disclosure documents which need to be completed and filed in with the appropriate Supreme Court probate registry. Examples of these can be found at the Supreme Court of British Columbia website:
http://www.ag.gov.bc.ca/courts/other/supreme/2010SupRules/info/index_probate.htm

What are the duties of an executor or administrator?

While the responsibilities of a personal representative may vary as needed, the basic duties include:

• completing an inventory and a valuation of all assets and debts;
• gathering names and addresses of all beneficiaries and next-of-kin;
• cancelling subscriptions and credit cards, redirecting mail and winding up all other personal matters of the deceased;
• taking control of all assets, including the transfer of ownership registrations and the collection of any debts owed to the estate;
• paying all valid or proven debts of the deceased (the personal representative may be held personally liable for these debts if a valid creditor remains unpaid after the distribution of the estate);
• filing tax returns for the deceased and for the estate;
• selling assets as necessary;
• preparing and obtaining approval from the beneficiaries, heirs-at-law or the court of an accounting showing the personal representative’s handling of the deceased’s assets including receipts, disbursements, and the proposed distribution of the estate;
• distributing the deceased’s estate including personal effects, real property, and financial assets in accordance with the deceased’s will, or in the case where there is no will, according to estate distribution legislation (in BC, the Wills, Estates and Succession Act).