What is Probate?

Have you ever heard phrases like “Probate an estate,” “Probate a Will,” “applying for Probate,” or “Grant of Probate”? Have you ever wondered what these phrases mean, whether they are referring to the same thing or whether they are referring to different things? If the answer is yes, you have come to the right place.

“Probate an estate,” “Probate a Will,” or “applying for Probate,” all refer to the same thing. These phrases are often used to describe the process of validating a Will of the deceased person through a court application. If the court is satisfied that the Will is the last Will of the deceased person and the applicant is the person named in the Will as executor of the estate of the deceased, the court will grant the applicant what is called “Grant of Probate” also referred to as “Grant of Letters Probate.”

What is a Grant of Probate?

“Grant of Probate” is an official recognition given by the court of your authority to deal with the estate of the deceased. Without this official recognition, third parties, such as financial institutions, or the Land Title Office, will have no way of knowing whether the Will is really the last Will of the deceased and whether the person named as the executor in the Will is really the person authorize to deal with the property of the deceased. However, with the Grant of Probate from the court, third parties can be assured that they are dealing with the right person and that they can transfer the assets held in the name of the deceased according to the direction given by the executor.

What is an Estate?

The estate of the deceased generally refers to the assets and liabilities of the deceased. For example, if the deceased owned a house and bank accounts prior to his or her death, the house and bank accounts will form part of the deceased’s estate upon his or her death. However, not all the assets of the deceased will form part of the estate. For example, joint accounts of the deceased will not form part of the estate of the deceased as the ownership of the joint accounts will pass to the other joint account holder upon the death of the deceased. Likewise, if the deceased owned a house in joint tenancy with another individual, the ownership of the house will pass directly to the other joint tenant without forming part of the estate of the deceased.

Who can apply for Probate?

Not everyone can apply for a Grant of Probate. In order to apply for a Grant of Probate, there must be a valid Will. Further, the Will must name an executor who will be responsible for administering the estate of the deceased. If there is no valid Will or no one is named as an executor, the spouse or child of the deceased may apply for a Grant of Administration in order to administer the estate of the deceased.

Preliminary Steps Prior to Applying for a Grant of Probate

Prior to applying for a Grant of Probate, the applicant must conduct a Wills Notice Search with the Vital Statistics Agency to ensure that the Will is the last Will of the deceased. The result of the search will indicate whether the deceased has registered any Wills Notice with the Vital Statistics Agency. If the deceased has registered a Wills Notice with the Vital Statistics Agency, the Wills Notice will indicate where the Will of the deceased is located. Conducting the search requires the Death Certificate, which you can normally obtain from the funeral home or from Vital Statistics Agency.

Also, before the applicant can apply for a Grant of Probate, the applicant will have to send out the Notice of Proposed Application to other executors and beneficiaries named in the Will and all the other people who may have claim to the deceased’s estate had the deceased not left a valid Will. This Notice must be sent out at least three weeks prior to the submission of the Probate application to the court.

Upon the lapse of the three week period, the applicant can submit a Probate application at the Supreme Court of British Columbia to obtain the Grant of Probate.

If you require further information on the preliminary steps prior to filing for a Grant of Probate please see our brochure entitled “What to Do When a  Death Occurs in Your Family”. Also, visit our web page entitled “Probate a Will in BC” for further information on the question “what is Probate” or contact M.J. O’Nions Lawyers & Mediators as we are happy to help.

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