What Is Probate and Do I Need It?

Written By

Vanessa Roberts, Amber Hoffart, and Rachelle Perron

If you’re like most people, you only have a vague idea of what probate is—it might even be the first time you are hearing the term. If you’ve recently experienced a loss and are wondering about the ins and outs of probate in Canada, this is the article for you!

What is probate?

Probate is a court-supervised process for validating a deceased person’s Will and appointing someone to administer the estate, or deal with all the assets and debt left behind by the deceased. Once the court determines the Will is valid, the court permits the executor to execute the Will and administer the estate. When there is no Will, the next-of-kin or another individual can apply to be authorized by the court to take on this role. 

Ultimately, the probate court will appoint someone to take control of the assets, pay debts and taxes, and distribute what remains in the estate to the beneficiaries. Many estates can’t be wrapped up until the court has issued a document that says who will be in charge of administering the estate. 

Probate is mostly a lot of paperwork. Although it is officially a court-supervised process for administering the estate, there is usually not very much oversight from the court unless there are disputes between family members or creditors. 

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.

How does probate work?

While every province has its own legal probate process and terminology, the process is generally the same across Canada. After the death, the person named as executor in the Will (or a hired attorney) initiates the proceeding with the local probate court. They do this by filing a court application. If there is no Will, province-specific rules say who can apply to be appointed as the estate representative (also called an estate trustee or administrator). The paperwork required is specific to each local probate court. 

The named executor will present the Will to the courts to ensure it is valid. For example, the court will make sure the deceased actually wrote the Will, that they were in the right mental state, and that they followed province-specific rules. If the Will is validated and the request is approved, the court will officially appoint the executor(s). When there is no Will and a probate application is made, the court will appoint another individual to take on the role of the estate representative. In this situation, this individual is usually called the Administrator. See here for more on this process.

The appointed estate representative will be given a “Grant of Administration,” which is also called a “Grant of Letters Probate,” or a “Certificate of Appointment of Estate Trust With or Without a Will.” These documents authorize the estate representative to take control of the assets, pay debts and taxes on behalf of the estate, and distribute assets to beneficiaries. Institutions like banks, the Canada Revenue Agency, land title and motor vehicle offices, insurance companies, and credit bureaus may ask for this document.

As part of the probate process, the Executor will probably be required to provide the court with a list of the beneficiaries listed in the Will as well as all the financial assets, property, and debts that make up the estate. They will also be required to notify the beneficiaries and, in some cases, potential creditors that the estate is in probate so they can come forward. The executor may be required to post a bond—which is a kind of insurance policy that protects the estate from losses. The probate court will tell you if this is required.

 

How much does probate cost?

It is important to note that there are fees involved with the probate process. Although the costs are paid out of the assets in the estate, the more you need to pay, the less inheritance the beneficiaries will receive. Costs vary by situation and by location, but they can include:

  • Probate fees/estate administration tax (vary depending on the size of the estate)
  • Professional fees to pay attorneys or accountants
  • Executor fees
  • Bond fees
  • Others: postage, notaries, appraisals & valuations, etc.

 

Do you need to go through probate?

It is important to note that not all estates must go through probate. Some people choose to apply even if it is not required. Applying for probate reduces potential liability and the chance of a claim being brought against the estate or the estate representative.

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

 

When Probate Isn’t Required

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

Saskatchewan

Under $25,000 probate not required.

Ontario

Under $50,000, probate may not be required. $50,000 - $150,000 a Small Estate Probate Application can be submitted.

British Columbia

Under $25,000 probate not required.

Quebec

A 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.

Manitoba

Estate value varies by the financial institution.

Alberta

Under $25,000, institutions typically will not require probate.

Newfoundland  and Labrador

Estate value varies by the financial institution.

Nova Scotia

Estate value varies by the financial institution.

Prince Edward  Island

Estate value varies by the financial institution.

New Brunswick

If the Will is not complex or if the estate administration will take a short amount of time, probate may not be required.

Northwest  Territories

Under $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.

Yukon

Estate value varies by the financial institution.

Nunavut

Under $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.

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:

 

You can always check with the bank (or other third party that is holding the assets) to see if they will release the money without probate. 

If you’d like to learn more about probate or have questions specific to your situation, Cadence is here to help. Our online platform provides guidance personalized to your location and situation, and human support from Certified Executor Advisors is always just a click away. 

To get started with Cadence, create an account by clicking the button in the invitation email. If you haven’t been invited by a Cadence partner, you can sign up with Cadence here or contact us for more information.