What Is Probate and Do I Need It?

Written By

Vanessa Roberts and Amber Hoffart

Probate refers to a court-supervised process for administering an estate and distributing the proceeds of the estate.  Letters Probate formally recognizes that a Will is valid and that an estate representative is entitled to deal with the estate. The process can take up to one year to complete.

 

When Probate Isn’t Required

However, Letters Probate are not always required to settle an estate in Canada. Probate may not be required if: 

  • There is no property in the estate 
  • Property or accounts are jointly held and will transfer directly to the surviving owner 
  • The deceased was a First Nations member living on reserve
  • You do not require access to financial institutions (banks, investments, etc.)
  • The value of the estate is small

Letters Probate confirms the appointment of the estate representative (referred to as executor, estate trustee with a Will, personal representative, or liquidator depending on the province) to administer the estate, as laid out in the Will. This document is also known as: Certificate of Appointment of Estate Trustee with a Will, Grant of Probate, Probate Will. This term will vary by province but we will use Letters Probate throughout.

To clarify, you can determine if the estate's value is small by reviewing the provincial/territorial requirements for estates that do not require probate. We have included these below:

Province/Territory

Estate Value and Details
SaskatchewanUnder $25,000 probate not required.
OntarioUnder $50,000, probate may not be required. $50,000 - $150,000 a Small Estate Probate Application can be submitted.
British ColumbiaUnder $25,000 probate not required.
QuebecA notarial Will does not need to be probated. The Will is completed by a notary and registered with the Chambres des Notaires. A holograph Will and a Will made before witnesses must be probated after the testator’s death.
ManitobaEstate value varies by the financial institution.
AlbertaUnder $25,000, institutions typically will not require probate.
Newfoundland        and LabradorEstate value varies by the financial institution.
Nova ScotiaEstate value varies by the financial institution.
Prince Edward  IslandEstate value varies by the financial institution.
New BrunswickIf the Will is not complex or if the estate administration will take a short amount of time, probate may not be required.
Northwest  TerritoriesUnder $35,000, an estate representative may file for a court declaration that the estate is a “small estate.” If the court issues the declaration, it can be administered without further probate measures.
YukonEstate value varies by the financial institution.
NunavutUnder $35,000, an estate representative may file for a court declaration that the estate is a “small estate.” If the court issues the declaration, it can be administered without further probate measures.

When Probate Is Required

Further, probate is most likely required if you answer yes to any of the following:

  • There is property in the name of the deceased alone (e.g. house, cabin, mineral rights, land, etc.)
  • The bank or other 3rd party requested it to release the funds
  • There are minor beneficiaries
  • The deceased owned stocks, bonds or shares in a public company
  • “The estate” was the named beneficiary on an insurance policy
  • There is a lawsuit relating to the estate

Eligibility to Apply

  1. There is a Will
  2. There is an estate representative named in the Will (they must be the one(s) to apply)
  3. There are two witnesses to the Will

If any of these circumstances do not apply, you may need to apply for Letters of Administration.

Documents Required for Probate

Moreover, the Court requires specific documentation to grant Letters Probate. Documents must be signed before a Commissioner for Oaths or by a lawyer. Cadence has a Commissioner for Oaths on staff and can assist you or you can find a Commissioner for Oaths by looking through the yellow pages of the phone book, online directories or checking with the courthouse.

In addition, each province has different requirements and timelines to apply for probate applications. It is best to seek legal advice on the required applications and deadlines. Let us know if you would like to talk with a lawyer, and we will help find you one.

Visit your local probate office's website to access the required documents and find information on fees. Further, information kits may be available at your nearest probate court. 

Lastly, a Judge will review the submission and if everything is in order, will grant Letters Probate. There is not a requirement to have a lawyer assist with the application, although in some cases it will be necessary.  

Find Out More About Your Local Requirements in Canada

Click below to determine what is required in each province/territory, for additional information and to begin the application process:

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