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 The will could be invalid for a number of reasons, such as a later will, proof that it was revoked by some action of the deceased (like ripping or burning it), or because it was not properly witnessed in the first place.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.
Probate is the process through which the court distributes the asset and property of a deceased person. It includes the property that has not been distributed by either in accordance with the person’s will, or if no will, then through the laws
Interesting comment. I am guessing that the whole process of dealing with estates differs significantly between Western Australia and Canada. Here in Canada, at least in the common law jurisdictions, the court does not get involved with the distribution of the estate. That is the task of the executor or administrator. All the probate does is give that person the official authority to distribute the assets of the deceased, and it must be done in accordance with the will. If there is no will, then the laws of intestate succession apply. In other words, along the blood-line.
“Probate involves a court application, though usually not a court appearance” I had a very big misconception. Till now used to think that as it is a legal process, all its working should be done in the same manner as any other cases are solved. This piece of writing has proved very beneficial for me and it is going to help me in future. Keep writing, good work.
I am contesting a will made by my father 6 months before he died where he changed the beneficiary’s. His previous will named myself and my brother but the latest one, my brother only. I believe my brother has been influencing and coercing my father into changing his will. I have been granted a caveat to the probate application. My question to you is, can I apply for an appearance to be applied to the probate application and if so what does this entail? I am presently contacting hospitals, doctors and nursing homes in order to better understand what has been happening with my father the last two years. An argument between my father and some two years ago, I left me being unable to see him at home but my brother was supposed to keep me informed and didn’t.
I cannot afford a solicitor and cannot apply for legal aid. Any answers or advice in plain simple speak please, I do not understand legal jargon too well.
I am unable to answer your specific questions in a forum such as this. You have done the most important first step, which is to apply for a caveat. I think you will need to retain a lawyer (someone who does estate litigation) to help you. Unfortunately this can be a difficult and complicated type of litigation.