Probate is the process through which our judicial system validates a Will and gives legal authority to a declared executor to administer an estate as set out in the Will. However, when people refer to probate, they are usually referring to the job of administering the estate as a whole – which means both the process of obtaining government authority and approval to proceed, as well as fulfilling all of the requirements outlined in the actual Will.
When an individual dies with a Will, their executor is required to takes steps to fulfil the wishes outlined in that individual’s Will and this often starts with their funeral arrangements. This means that the executor’s work can begin quickly.
But ultimately, the role of an executor is to pay off debts owed by the estate, and to distribute all remaining wealth and property according to the Will. This may require the executor liquidate property or investments; suspend or make payments for the estate out of a bank account; or otherwise take action on the estate. As it is unlikely that the executor was a co-signer on those assets, most financial institutions, brokerages and real estate agents require proof that the executor has been given the authority to divest the deceased’s property. And that proof comes in the form of a Wills Notice search, and various affidavits from the Probate Registry, which are obtained as part of the probate process.
An executor is also required to ensure that three groups of people are aware of the death and the fact that the executor is obtaining probate:
- Any beneficiaries referenced in the Will:
- Anyone potentially entitled to part of the estate; and
- Anyone who might be entitled to apply to the courts for consideration in the Will, under the Wills, Estates and Succession Act. This usually applies to spouses and children.
It can be helpful to receive legal advice to determine who needs to be notified.
Executors are seldom familiar with the role or the various court processes required. An executor might also lead a busy life; they may work full time, run a business, have a family to care for, etc. They may have the best of intentions to fulfil their role as executor dutifully; however, the necessary forms and procedures can be time-consuming and overwhelming. And as executors are personally liable for any mistakes in the debt payment and asset distribution of an estate, it is common for executors to engage a lawyer (through the estate) to help with the process.
If you are the executor of an estate and would feel more confident with assistance,
fill out our form or call us for estate administrative advice at 604-533-3821.