Probating a Will

Probate is the court procedure by which a will is proved to be valid or invalid. The court has jurisdiction to determine both the validity of a will as well as the meaning of the provisions contained in a will. A court certifies that a will was proved to be valid by issuing a Grant of Probate to the Executor named in the will. The Executor is thereby granted power to administer the property of the deceased.

The Executor must file a number of documents in making a request for Probate, including: all original copies of the will along with affidavits of execution, a complete inventory of the deceased's property, and a Request for Probate with an affidavit in support.

Once the court has issued a Grant of Probate the Executor as a general rule is allowed one year from the date of death to call in the assets and settle the affairs of the Estate. This is referred to as the Executor's year. However, the Executor's year does not apply to the payment of debts and the Executor is liable for the payment of the deceased debt's from the moment of death. While Estates are commonly distributed to the beneficiaries before the expiry of the Executor year, no distribution can take place until all liabilities have been ascertained and discharged including funeral and testamentary expenses. A notice to creditors should be published in accordance with the Trustee act and if necessary notices under the Homesteads Act and the Dependants Relief Act should also be issued.

The Executor should also apply for Canada Pension Plan benefits, if applicable. CPP benefits include: a lump sum death benefit payable to the Estate, a monthly pension to the surviving spouse, and monthly benefits for dependent children.

The lawyer for the Estate often requests a release from the beneficiaries at the time of distribution. This release is obtained to avoid the time and expense of passing the Estate's accounts. However, in certain situations it may be necessary or desirable to make an application to pass accounts. The passing of accounts is a further court procedure which involves the filing of a number of documents that must be served on all persons interested in the Estate. Basically, the Executor must account fully for his /her administration and distribution of the Estate assets.

Application For Administration of an Estate
When someone dies intestate (without a Will), interested parties may apply to Court for Letters of Administration. When a person dies leaving a Will but has not appointed an Executor (or has appointed an Executor but that person is unable or unwilling to act), a person may apply to obtain Letters of Administration With Will Annexed.

The following relatives of the deceased have the right to apply for Letters of Administration or Letters of Administration With Will Annexed, in the order of their priority: his or her spouse, children, parents, siblings, then nieces and nephews. The Courts in Manitoba will only grant Letters of Administration to residents of Manitoba.

Applications for administration are Court procedures that require specific Court filings. As with Probate, no distribution of the Estate can occur until all liabilities have been ascertained and discharged, including funeral and testamentary expenses.

A Notice to Creditors should be published in accordance with the Trustee Act, and if necessary, notices under the Homesteads Act and the Dependants Relief Act should also be issued. The Administrator should also apply for all applicable CPP benefits. Unlike an Executor, the Administrator cannot be compelled to make distribution of the Estate within 1 year of the deceased's death. Like the Executor, the Administrator will seek releases from beneficiaries at the time of distribution to avoid the additional time and expense of passing accounts.

Remuneration of the Executor / Administrator (the Personal Representative)
Section 90(1) of the Trustee Act provides that an Executor / Administrator (the "Personal Representative") in his or her capacity as Trustee of the Estate is entitled to such fair and reasonable allowance for his care, pains, and trouble, and his time expended on behalf of the Estate.

Any remuneration for the Personal Representative must be reasonable from the point of view of the beneficiaries as well as from the point of view of the Personal Representative. In determining the remuneration, the Courts consider: the simplicity or unusual complexity of an Estate, extended or serious services required of the Personal Representative, the exercise of wise judgment to the advantage of the Estate and whether most of the work was done by the Personal Representative or by his or her solicitor.

Court Filing Fees
Filing Fees for Probate or Administration are based on a percentage of the net value of the Estate. Currently, the Court charges a filing fee equal to 0.7% of the Estate's net assets.

Please contact us for further information in respect to Probate or Administration.

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