Probate
Put simply, ‘probate’ is the process required to prove the originality and validity of a will.’Probating’ a will requires a court application in which the court reviews the will and confirms that it satisfies all of the formal requirements of a valid will. The process also requires the payment of what are known as ‘probate fees’. Probate fees are based on a percentage of the value being transferred through the estate of the deceased. One of the reasons why probate is so important is that generally no person may rely on a will in controlling and distributing assets in the estate until the will is proven in probate (with some exceptions). This is because a will can be invalid for many reasons (wills requirements in British Columbia are fairly strict), and if the will is invalid, then property in the estate may have to be distributed in ways that are very different from those originally intended by the deceased. That is, if a will does not pass the probate process, the deceased is deemed to have passed away without any will at all. In that case, the property of the deceased must be distributed according to the provisions of the Estate Administration Act (B.C.), and any gifts under the will to people who are not specifically contemplated under that Act (i.e. any gifts to people who are either distantly related or not related to the deceased) will be invalid.
The requirements of a valid will in British Columbia are fairly strict, and failure to meet those requirements may render a will invalid.
A few important notes about wills and probate:
A will may be contested, and a third party may challenge the probate process on many grounds, including formal invalidity, coercion, incapacity, or under the Wills Variation Act (B.C.);
Estates may be carried out without a Grant of Probate when all assets are jointly held with another person;
RRSPs, pensions and insurance policies with a named beneficiary (other than the estate of the deceased) do not form part of the estate and will usually transfer directly to the survivor or named beneficiary;
Where there is no will, an interested person must usually apply to the court for Letters of Administration in settling out the deceased person’s estate according to the provisions of the Estates Administration Act (B.C.).
Families facing probate have a difficult enough time facing the loss of a loved one. Let us help make the probate process as easy as possible. Please contact us for more information about probate in British Columbia.