As an estate and wills lawyer, I am often asked to explain, what is Probate?
PROBATE, from the Latin probatio, means “the proof of a will”. It is the process by which a will is proven to be valid or invalid. The will could be invalid for a number of reasons, such as a later will, proof that it was revoked by some action of the deceased (like ripping or burning it), or because it was not properly witnessed in the first place.
Probate involves a court application, though usually not a court appearance; the necessary documents are provided to the probate registry and the rest is done “behind the counter”.
If everything is in order, and the court is satisfied that the will is valid and all the necessary information has been disclosed in the proper format (through affidavits), the court will issue a “Grant of Letters Probate” in favour of the person applying.
Usually it is the executor named in the will who applies, but sometimes that person is unable or unwilling to do so. For example, the named executor may have predeceased the will maker, and no alternate was named. In that case another person may apply, and the court will issue a “Grant of Administration with Will Annexed”, meaning the person who applied for the Grant may administer the estate according to what is written in the will, as if he or she were the named executor.
ADMINISTRATION is the process of actually carrying out the terms of the will. It is the management of the estate. Administration is also the term used to describe the process of looking after the estate of a person who died without a will. In that case, someone connected to the deceased or their estate, who may or may not be an heir, has to apply to court for a Grant of Administration, and they will be appointed as Administrator of the Estate. Because there is no will, (legally called an Intestate estate) the law determines who gets the assets. No, it is not usually the government, contrary to popular belief, though that can happen if there are no heirs. The process of managing an intestate estate prior to distribution is basically the same as for managing an estate where there is a will.
The main difference between the two procedures is that an executor appointed in a will does not need the consent of the beneficiaries or creditors of the deceased. An applicant for administration, with or without a will, needs to not only get those consents, but also, usually, to post a bond, a kind of insurance in case the administrator absconds with the assets. Because of that, an applicant for administration usually needs to own their home and/or have other substantial assets and a tie to the location where the estate is to be administered.
Probate of a Will “in common form”, as described above, does not prevent a disappointed heir or other party from contesting the validity of the will on other grounds. For example, the will may appear valid, except that there is evidence (or allegations) that the deceased was unduly influenced by someone, or was not of sound mind when he or she made the will. In British Columbia, the Wills Variation Act allows a spouse or child of the deceased to contest a will if the deceased “did not make adequate provision” in the will for him or her. What that means is very dependent on the particular circumstances of the case. In other provinces, people who were in a position of dependency on the deceased, but who were not provided for, may apply to court to have that rectified.
In each of these situations, the questions and issues will be discussed in open court, and the judge will decide whether the Will is valid, and if so, whether the distribution set out in the Will should be altered.
How long does Probate take? This is difficult to answer, because every estate is unique. The process of figuring out what is and is not part of the estate, and how much each asset of the estate is worth, can take a considerable amount of time. If the deceased was organized, and the executor is familiar with the estate assets, as might be the case in a husband and wife situation, an application for probate can be prepared and filed in a matter of weeks after death. In the case of an unexpected death of a person who kept his or her affairs private, it can take much longer. Sometimes it can take a long time to track down beneficiaries. This can be more of a problem if there is no will, and it becomes necessary to track down distant cousins.
As an example, I have just completed the administration of an estate where the deceased died 6 years ago, without a will, and another estate where the deceased died 6 months ago, but was very organized. Bottom line, if you want to ensure that your beneficiaries receive their share of your estate sooner rather than later, make a will and keep your papers in order. Believe me, it really does speed things up.