What Does Probate Mean?

November 22nd, 2021


3 minute read time

People new to estate settlement have a lot of questions, and one of the most common is: ‘What does probate mean?’ The word seems to arise in almost every conversation! ‘Will you probate the will?’ , ‘How long does probate take?’ ‘Why can’t you do anything until after probate?’ If you don’t understand what probate means, these can be very tricky questions!

The origin of the word is from the Latin word, ‘Probatum’, meaning ‘something proved’ and that’s a terrific summary! Probate is the process of proving that the will is valid, and that the executor / executrix is recognized as the person authorized to execute the will. This is done in court by a judge, called the Probate Court.

So, probate is the legal process of authenticating the will and executor and, if there isn’t a will, or the will is deemed invalid, appointing an administrator. (In Ontario, executors are called Estate Trustee with a Will, and administrators are called Estate Trustee without a Will.)

One of the issues considered is whether the will is valid. For example, the decedent may have written a will more recently than the one presented. Was the will signed and witnessed properly? If not, it would be invalid. Is the form acceptable? Not all forms of wills are considered legal in every province and territory in Canada.

The court will also want to verify that the person presenting the will is in fact the person appointed in the will as the executor. Identification will be required, which could prove tricky if the person changed their name. Other documentation may be required.

Another common question is whether probate is required. The answer is almost always ‘yes’ if any bank or investment accounts need to be accessed or if they owned property in their name only. The issue is that no bank or similar authority will allow a person to withdraw or transfer funds unless they are sure the individual is authorized, and that is a question for the court, hence the need for probate.

In the case of a married couple or civil union, probate is frequently not required on the death of the first partner and almost always on the death of the second. This is because they generally will have joint bank accounts, own properties jointly (‘joint tenancy’ ownership specifically) and have named beneficiaries on investment accounts and life insurance. That said, there can often be something overlooked that will trigger the need for probate.

When a will is probated, there are usually costs involved, except in Manitoba, and can be a low fixed cost, such as in Alberta and Quebec, or quite high and charged as a percentage of the estate, such as in Nova Scotia, Ontario and British Columbia. (Ontario now calls these fees the ‘Estate Administration Tax’ with the acronym ‘EAT’ because it’s the final bite they take!)

Once a will is probated, it falls into the public realm, meaning it is accessible by anyone, regardless of whether they have any justifiable interest. It is a public document. This is yet another important reason to ensure estates are well prepared and utilize all relevant estate planning tools available.

Probate also takes time. The length of time varies with each court and can be anywhere from one month in a rural community to six months in major centers. Paying the bills of the estate (funerals, probate fees, property taxes, utilities, maintenance, etc.) should not be the responsibility of the executor, which is why Estate Expense Advances are available (https://executordepot.com/executors/estate-expenses-advance/).

While probate may seem a cumbersome process, it’s there to protect our assets when we’re gone and unable to protect them ourselves.

May 20th, 2024