June 26th, 2019 by FH&P Lawyers

Generally speaking, there are two types of Estate Grants. For estates with a will, the estate grant is known as the Grant of Probate. For estates without a will, the court appoints an administrator for the will through a Grant of Administration. On this article, we will be focusing on Grant of Probate

Probate is a process through which the court validates the authenticity of a will. Once the process is complete, the court issues a Grant of Probate. A Grant of Probate allows institutions to verify they are dealing with the right executor and the will presented is the correct will. Not all wills need to be probated. As a matter of fact, wills for estates that are worth less than $25,000 usually do not require probate. It is advisable to speak to a lawyer to determine whether or not a will needs to be probated.

There are a number of situations that necessitate obtaining a Grant of Probate. However, in order to determine whether or not an will needs to be probated, we need to determine what assets pass under the will that form part of that person’s estate. For instance, a property ownership as joint tenants or joint bank accounts could give the surviving owner a “right of survivorship”, meaning the surviving owner is automatically entitled to the rest of the share of property. In this case, a probate is not necessary because the assets pass pursuant to the Right of Survivorship and do not form part of the estate. However, in the case of a property ownership as Tenants in Common, where there is fractional ownership between the parties, a will needs to be probated as the deceased interest in the property (i.e. their ½) forms part of the estate.

If the estate is worth more than $25,000, a Grant of Probate will more likely be required by third parties such as financial institutions and ICBC, whereas the Land Title Office requires a grant of probate regardless of the value of the land. There are numerous considerations when determining if a Grant of Probate is necessary, which is an important reason to seek the advice of a lawyer.

Probate is a court process with several steps. Here is a basic overview:

To apply for a Grant of Probate, you need to do the following (in order)

  • You must notify everybody that will inherit under the will or would inherit if there was no will at least 21 days before you file your court application.
    • The application for the grant of probate will only start being processed 21 days after all parties have been notified.
  • Prepare the probate application with the following documents. Although these are generally what is required for the application, you should advice a lawyer on what to file for each case:
  • File the probate application. If your file is complete and approved, you must pay probate fees before the court will issue a Grant of Probate. You can do this at the probate Registry of the Supreme Court of BC. Probate fees calculated based on the value of the assets in the estate.
  • A submission for Estate Grant
  • An Affidavit of the Applicant
  • An Affidavit of Assets and Liabilities
  • The original will (signed)
  • Affidavits of Delivery
  • Two copies of a certificate of Wills Search
  • Any additional documents pertaining to that specific will

Although it is possible to complete the process of probate without a lawyer (save for the documents that need to be sworn in front of a lawyer), it is always advisable to seek the advice of a lawyer. This helps you ensure you have the right material, and that the estimated value of the estate is as accurate as possible. Often, legal fees are dependent on the size and complexity of the estate.

Contact us today to speak to one of our estate lawyers for all your legal needs!

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