My grandma just passed away. Do I need to get her Will probated?
Probate, or “applying for Letters Probate”, is the process of getting the Supreme Court of BC to declare that a Will is valid and that the person appointed as executor is the right person to do the job.
There are actually three different applications that MIGHT be made:
One option is an “Application for Letters Probate”, which is filed when there is a Will and the Will names an executor (someone to manage the estate). The purpose of this application is to have the court verify that the Will is valid, and to confirm that the named executor can act.
A second option is an “Application for Letters of Administration with Will Annexed”, which is filed when there is a valid Will but either no executor appointed, or the named executor has died. This application has the court verify that the Will is valid, and then the court appoints someone, usually a spouse or other close relative, to act as the executor.
A third option is an “Application for Letters of Administration”, which is filed when there is no valid will. This normally occurs when the person died without a will, but it can also be used when there are fatal flaws in a will – for example, no witnesses, or the deceased forgot to sign it. This application has the court officially appoint someone, usually a spouse or other close relative, to administrator the estate.
There is a cost to applying for probate. Fees must be paid to the court in order to get probate issued. While there are no probate fees for estates under $25,000, larger estates pay almost 1.4%. So, an estate worth $1 million would pay almost $14,000 in fees.
So, do you need probate? Two of the biggest determining factors are: whether people are fighting over who gets to manage the Estate, and whether the institution holding the assets requires probate to release the assets to you.
Letters Probate clarify who is “in charge”; so, if there are a couple of people claiming to be your grandma’s spouse, or her kids all want to be in control, a Grant of Letters Probate will officially declare who is managing your grandma’s estate.
A big factor to consider is whether there are assets in the estate that need probate in order to be transferred. If your grandma had her house in joint ownership with Uncle Ronnie, and she had her bank account in joint ownership with Aunt Suzie, both of those assets would go to the survivor upon death. As a result, as there are no assets in your grandma’s estate, there is no reason to apply for probate.
Or, perhaps your grandma had another bank account in her own name, but it only contained $3700. As many banks do not require probate to pay out accounts of less than $10,000, in this case you may not need to file for probate to get the funds paid out.
However, if your grandma’s summer cottage and her car were in her own name, and she has a third bank account with $75,000 in it, you will probably need to get probate in order to transfer those assets.
In order to determine whether you need to get probate, you must figure out whether there are assets in the estate, and if there are, are you able to transfer them to the beneficiary without hassle?
Please note that this column is provided for general information only. As specific facts affect how the law is applied to your circumstances, it is always wise to get the advice of competent legal counsel.
I always welcome questions to be included in future columns. Please email them to me at: Halldor@Trustlawyers.ca