The Probate Process

Is Probate Necessary?

When someone dies, his or her belongings and obligations are collectively known as his or her "estate".  Every estate must be "settled", meaning obligations resolved and belongings distributed to the rightful heirs – but not every estate must go through probate.

In most cases, if the estate contains only assets that do not require probate (see Probate Exclusions below) or the remaining estate is considered "small", then full probate is not required (although some still choose to go through probate – see Benefits below).

See Settling Small Estates for state-specific rules about bypassing or minimizing probate.

Is a Lawyer Required?

In most cases, the decision to retain a lawyer is up to the executor: see Do I Need a Lawyer?

Note that even if the executor does hire a lawyer, the executor will still personally have a lot to do, and EstateExec will still be very useful in terms of tracking assets, expenses, and more.

Probate Process

Probate details vary somewhat by province, but there are many common elements. While it is sometimes possible to settle an estate without going through probate, many of the basic concepts are the same whether or not the court is involved:

Appointment: The first step is to get the court to formally appoint you as executor (or personal representative, or administrator, or trustee, or whatever local term is used). This step requires filing documents with the court, notifying potentially interested parties, and obtaining a probate bond if required. See Becoming an Executor for details, and Probate Forms.

Notice of Probate: Most provinces require you to notify potential heirs (including heirs that may be excluded from the will but would inherit if there were no will), and anyone else named in the will about the probate. Some provinces include this notification as part of the above appointment, but if not, you will need to make it immediately after your appointment as executor.

Estate Inventory: You will need to provide the court with an official inventory of estate assets. Often, an initial version of this inventory will be required along with the probate application, but this inventory can be updated later if additional information comes to light. See Taking Inventory.

In Each Province: Personal property (such as a bank account or coin collection) is generally probated in the decedent's legal province of residence, but real estate is probated where the property is physically located. Certain classes of personal property, such as vehicles that are registered and titled out of province, may also need to be probated in the jurisdiction where the property is domiciled. If there are multiple real properties in a single province, you can probate them all in the same probate court, but if the decedent owned property in multiple provinces or internationally, you'll have to go through the settlement process in multiple locations (see Ancillary Probate).

Family Entitlements: A surviving spouse and other dependants often have rights to the estate that can supersede the terms of a will or even legitimate claims of creditors. In some cases you are legally obligated to inform the spouse of those rights, and in most you are required to wait a certain amount of time to let the spouse decide whether to make any claims. See Family Entitlements.

Creditor Notification: It is best practice to notify creditors of the probate process so they know to submit claims, and many provinces require such notification for estates within their jurisdictions. See Finding Debts.

Debt Resolution: Once you understand the overall financial situation of the estate, you must attempt to resolve all debts. See Resolving Debts.

Tax Payments & Clearance Certificate: You must file a tax return for the decedent's final year of life, and for the estate. It is best practice to then apply for a CRA Clearance Certificate before distributing any assets to heirs See Paying Taxes.

Asset Distribution: Once you have resolved all debts and paid any taxes due, you distribute the remaining assets to the rightful heirs. See Making Distributions.

Passing of Accounts: The final probate step is usually the passing of accounts, in which you submit a final accounting report of estate financials to the court for approval. See Final Accounting Report.

Probate Exclusions

A number of asset types are generally exempt from the probate process:

• Assets with named beneficiaries, such as
• Life insurance policies (unless the beneficiary is the estate itself)
• Retirement plans (e.g., RRSPs, LIRAs)
• Trusts (that existed prior to death)
• Funds held in Payable-On-Death (POD) account
• Securities registered in a transfer-on-death (TOD) form
• Real estate subject to a transfer-on-death (TOD) deed
• Vehicles registered in a transfer-on-death (TOD) form
• Jointly owned assets, such as
• Property held in joint tenancy with right of survivorship
• Property held in community property with right of survivorship
• Sundry low-value household items

Costs and Fee Calculator

Probate court fees can vary from $0 to $100,000+ depending on estate province and value. In addition, it's common to spend thousands of dollars on lawyers and accountants – and since lawyers and accountants typically charge by the hour, having your information well-organized via EstateExec will likely pay for the EstateExec licensing fee many times over.

Court Location

It can sometimes be difficult to determine which court to use for a given estate, and the particular type of court that oversees the probate process varies by province. If you are using EstateExec, Tasks: Start probate (see sample) will help you find the appropriate court for your estate.

As noted above, remember that real property must be probated in the province in which it is physically located, so you may need to go through probate in multiple provinces.

Benefits

If probate is required, one clear benefit of probate is that you will be following the law. However, even if probate is not required, it can help shield you from potentially unhappy heirs, and it will also get you a document commonly known as your "Letters" (sometimes known as Letters of Probate, Letters of Administration, Letters Testamentary, etc.), which will make it easier for you to prove your authority when dealing with third parties such as banks.