1. What is probate?
Probate is the process by which your Will is submitted to a probate court and your Executor is formally appointed. A Grant of Probate is the Surrogate Court’s certification that the Will submitted meets the requirements set out in the Wills and Succession Act and is the last Will and Testament of the deceased.
Before probate is granted, the assets of the deceased individual are supposed to be held by the personal representative. Your estate can only be divided between your beneficiaries once the Court has confirmed both the appointment of your executor and the validity of your will. This is because a Will can be contested or challenged during probate as well. The courts will aim to resolve possible confusion between multiple documents, and deal with any concerns regarding the legitimacy of a document. Once the executor receives the Grant of Probate, he or she can carry out the executor’s duties and distribute the estate according to the Will.
2. Does a Will have to be probated?
If the estate is very small or simple, it may be possible to avoid probate. For example, this arises often when a couple has made an estate plan in which their personal assets are held in joint names and real property is held in joint ownership. Joint ownership carries a “right of survivorship” – the surviving account holder or land owner automatically acquires full ownership of the jointly held assets.
But whether a will must be probated depends on many factors, such as the nature of the assets, the complexity of the estate, and the policies of the agency or financial institutions that hold the assets. Most banks have the discretion to release funds without a grant of probate for accounts with small balances. However, many estates have at least a few complications that make a grant of probate necessary. For example, if the deceased had a lot of investments, bank accounts, or land was held in their name only, the institutions holding these assets—like the Land Titles Office— are going to require the probate of the will for their own legal protection.
Finally, Probate cannot be applied for without a Will in existence. If there is no Will, the Court will appoint a personal representative to distribute the estate. The Surrogate Rules list who can apply for a Grant of Administration, which allows a personal representative to administer the estate of a deceased who has no Will.
3. How long does the probate process take?
A Grant of Probate usually takes several weeks from the time the documents are filed with the Court, but the wait time can vary with the complexity of the estate and the volume of cases the Court has. A lawyer who has experience probating wills and estates can help you move through the process more efficiently by ensuring everything is correctly filed the first time.