In recent posts, I covered some of the basic elements of estate planning, including information on wills and executors. Another topic I get questions on is probate. When it comes to settling an estate, many people don’t understand what probate is and what it’s all about. The following general information will provide answers to common questions.
What is Probate?
Probate is the official “proving” of a will. It’s the process that verifies the will is the valid, final version intended to outline the deceased’s wishes. There is usually an accounting of assets and liabilities, particularly identifying any property that cannot be passed directly to a spouse, dependants, or named beneficiaries,.
It’s important to know that the rules regarding probate, the application process, the governing body, and the associated fees vary from place to place. Here in Canada, probate is a provincial matter and each province has some differences. If you live in the U.S. or any other common law country, you’ll find there are variances between jurisdictions too. Check with a lawyer to determine the exact protocol for probate where you live.
When probate is approved by the court or governing bureau in charge, the executor is given formal documents, referred to as “letters of probate” (or “letters of testamentary” or “letters of administration”). These letters allow executor to then go about settling the estate.
Why is probate necessary?
Even in a simple estate, third parties will want proof that releasing and changing title on the assets is the proper, legal thing to do. Imagine your executor going into a bank and telling them he wants to take the cash out of the deceased’s account and distribute it to other people. They’ll want proof he is the legal executor, that the person has indeed passed away, that the will does call for distribution of the cash, and so forth. The bank isn’t going to just take a stranger’s word for it because they’d be held liable if they wrongfully released the cash. Similarly, transferring title of other property like a house will require proof that everything is legal. That’s what probate does.
It’s important to note, if the deceased had assets in more than one country or more than one state or province, the will must clear any legal hurdles in each jurisdiction before proceeding with settling the estate.
What does probate cost?
There is no definitive answer as probate fees vary from place to place. Some jurisdictions use a flat fee. Others have a scaled fee depending on the size of the estate. Still others use a percentage system. Some districts have a maximum fee that can be charged, while others don’t.
If you use a lawyer to help prepare for probate, they will charge fees too. Some lawyers will bill a percentage of the value of the estate. Others will levy their usual hourly rate and their fee will depend on how much time they put into the preparation.
If the deceased has assets that will require professional estimate to get an accurate valuations, there will be appraisal fees. If there are assets in many jurisdictions, particularly overseas, expect the cost of probate to go up.
Does a will have to go through probate?
Not necessarily. If the assets of an estate fall into certain categories, you may not need to have the will probated. For example, if the deceased’s only asset was a house he owned jointly (with the right of survivorship) with his spouse, probate would not be needed. Assets with named beneficiaries (such as life insurance policies) can often be passed directly to the beneficiary without needing to go through probate. However, the larger and more complex estate is, the more likely probate can’t be avoided.
With prudent estate planning, married couples can reduce the amount of assets that have to go through probate if one or the other passes away first. This simplifies things greatly for the executor and the surviving spouse, and can reduce the fees associated with probate. When the second spouse passes, the need for probate will again be determined by the nature of the estate.
There are times where an executor will file for probate even if it’s not required. For their own legal protection, an executor may want proof the will is valid and is the final version, particularly if they’re worried the will may be contested by someone.
Who files for probate?
It is ultimately the executor’s responsibility to make the application for probate. My experience has been that most executors prefer to get a lawyer’s help with this, but I’ve known a few people who have done it themselves. But the duty falls on the executor’s shoulders.
How soon does the will have to be filed for probate?
Since the executor needs the will probated in order carry out settling the estate, it makes sense to get it done as soon as possible. However, if there are delays in getting all the information together, it may take time to prepare the application. It’s up to the jurisdiction to impose a deadline. Some have them, and some don’t. In the event it looks like it will take to prepare for probate, the executor needs to be aware of any filing deadline.
What is the process?
Each jurisdiction will have variations in the process, but as a rule the executor needs to file for probate with the relevant court/governing body that applies to the estate. Using a lawyer that is familiar with the process is advisable. Making a mistake may result in probate taking longer and perhaps end up costing more than a lawyer’s fees.
You have to provide the court with a physical copy of the will. Each jurisdiction will also have their own paperwork requirements for asset inventory, appraisal forms, accounting forms, etc. Naturally there will be a probate application/submission form. Some documents will require a lot of information and detail. Some will require notary signatures and/or witnesses. As with all legal procedures, there will be plenty of paperwork and it’s best to get it done right the first time. Incomplete or inaccurate documentation will delay the process.
How long does probate take?
The time it takes for probate to be granted depends on:
submitting accurate and complete documentation
the size of the estate
the complexity of the estate
how busy the local court that grants probate is
I’ve seen it take only a few weeks to be complete. I know of cases where getting probate granted took over a year. Every situation will be different. Using a lawyer to help won’t necessarily speed up the process, but it will ensure the filing has been done properly which should help.
What happens when probate is granted?
When probate is officially granted, the executor’s real work begins. Taxes and debts get paid, assets get distributed or sold, trusts can be set up, personal items get doled out, and so forth. Whatever the will dictates can now be done. That doesn’t necessarily mean final settlement will happen fast. But at least when probate has been granted, the settlement process can begin. Until then, there’s not much the executor can do except look after the minimum requirements of the estate.
If you’re a widow and you’re also the executor of the estate, I hope you have a clearer understanding of what probate is all about. If you’re a widow working with an executor, you’ll now know why the executor can’t do much until probate is granted. Do what you can to assist the executor to help speed the process up.
Important Disclaimer: Estate law varies considerably depending on what country you live in. Within countries, individual states or provinces can have important legal differences too. The information provided here is general in nature and for informational purposes only. Please consult a professional who is licensed in the jurisdiction of your residency prior to making any estate plans or changes.
