Grant of Probate

If you are named as Executor in someone’s Will, you have the responsibility of carrying out the terms of their will when they die. This means that you have to deal with their property (commonly known as their ‘estate’).

To act on the will, you may find that you have to apply for probate.

What is Probate?

Probate is official recognition that a will is legally valid.

How does the process work?

As Executor, you need apply to the Supreme Court for a ‘Grant of Probate’. The grant is a document certifying that the Supreme Court recognises your authority to deal with the Estate.

The court will only issue the Grant once it is satisfied that the Will you wish to act on is the last Will of the person who has died.

Why would I need a grant of Probate?

The main reason is that some people or organisations holding assets of the estate will not release them without sighting a Grant of Probate.

Do I have to apply for a grant of Probate?

Not necessarily.

You don’t need a Grant of Probate if the asset (e.g. the family home) is in joint names, because it already belongs to the surviving joint owner.

In some situations, it is worth checking first with the organisation involved to be sure that a Grant of Probate is really necessary.

You may not need one if:

• the assets are not large (e.g. a small bank account); or
• real estate is simply to be transferred to a beneficiary named in the Will (the Land Titles Office has a special procedure for this, and you usually don’t need a Grant of Probate); or
• you have to sell real estate (the Land Titles Office has a special procedure for this, too, and you usually don’t need a Grant of Probate).

What else am I required to do?

An Executor has many duties, such as:

• gathering or taking control of estate property;
• lodging tax returns and finalising tax affairs;
• advertising for any debts owing, and paying those debts out;
• finalising any financial or business affairs;
• paying out legacies;
• distributing or transferring the estate property according to the will.

You must be very careful in your administration of the estate, because you can be held accountable for any losses.

For more information contact us.