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Do you need to obtain the Grant of Probate on Death?

NOTE: The article shared below is for informational purposes only and is not to be considered legal advice. For the correct advice pertaining to your situation, please contact a wills and estates lawyer in your area.

After the passing of a loved one, one of the key questions facing family members is whether they have to go to court in order to obtain the grant of probate. The short answer is, it depends on what is involved in the estate. In particular, one needs to know what type of assets exist in the name of the deceased individual and whether they can be transferred through other methods that may avoid the need for obtaining probate. In this short post, we will look at just some of these situations.

Where a grant of Probate may be required:

No will?

If the individual died without a Will, a situation known as intestacy, a probate process must follow and the individual applying will obtain something called letters of administration. It is no wonder that lawyers stress the importance of having a Will prepared.

Deceased owned real property

If the deceased held real property (house, land, mortgages etc.), then it is likely that an application must be made to the court in order to obtain the grant of probate. This is what the land registrar relies on in order to allow transfer or dealing with property in Ontario. There are some increasingly rare occasions that this may not be required if the property falls within the old Registry system.

Other property held by institutions

In a scenario where a bank or other third parties hold property under the name of the deceased, they may insist on the grant of probate. Why? Mainly so they are protected. The party acting as the Estate Trustee will have to obtain this grant through the court process in order to prove they have the authority to deal with such assets. Most importantly, by insisting on such, the banks or institutions limit their liability by relying on this grant.

However, in the event that accounts are relatively small, a bank may not insist on the grant of probate, particularly where indemnities are signed and parties are known to the bank – such as a surviving spouse.

Protection for the Executor and proving the validity of the Will

By following the process of obtaining the grant, the Executor limits him or herself from potential liability to a certain degree. This way, if another party makes a claim that they had authority to act under another will or document, the Executor can at least claim that they are acting under confirmation of the courts. Of course, this does not by any means lower the standard by which an Executor is expected to carry out his or her duties. Certainly, the grant itself can be challenged but there is no question that obtaining the grant is a method of protection for the Executor. Further, the act of obtaining a grant on its own is confirmation that a valid will exists – this is especially useful in a situation where there may be a question regarding the capacity of the deceased Testator.

Whether a grant of Probate may not be required:

Items that can usually be transferred from deceased’s name:

There may be a property that is held by way of a right of survivorship that may be allowed to be transferred without the need for probate. However, recent cases in the Supreme Court of Canada put some of these joint accounts into question and legal advice should always be sought.

Additionally, an insurance company may transfer insurance proceeds to a listed under a beneficiary designation without the need for probate. The same may apply for registered plans such as RRSPs etc.

Depending on the jurisdiction involved, personal effects, cars and vehicles, Canada Pension Plan death benefits are usually transferred without the grant of Probate. Shares that the deceased held in a private corporation may also be allowed to be transferred without the grant.

Make a list and obtain legal advice

The main message here is that there may be a number of assets that require probate and a few that do not. As obtaining the grant of probate in an estate matter takes takes at least a number of months or more and requires patience from all involved. The key is to make a detailed list and gather information if you are acting as the executor and obtain legal advice from an estate lawyer as to what steps are to be taken.

Our office serves and assists with wills, estate, probate as well as real estate matters in Kitchener, Waterloo, Cambridge and surrounding areas such as the GTA.

NOTE: The article shared below is for informational purposes only and is not to be considered legal advice. For the correct advice pertaining to your situation, please contact a wills and estates lawyer in your area.