Understanding the key legal steps in probating of a will

Whether you’re an executor, a trustee, or a family member, facing the court to present that piece of paper someone has left behind is daunting. However, we may not escape the law’s requirement to probate the will of our deceased loved one.  

In this article, we’ll discuss how does probating of a will works, what happens in this legal process, and what you should do if you’re a named executor or trustee. 

What does it mean to probate a will? 

Probate is the process of validating a will, which is provided by the applicable provincial or territorial laws. There are also other instances when probate is needed, even if the deceased does not have a will. 

During probate, the court will:  

• legally confirm that the will presented is indeed a valid one and is the will of the deceased 
• appoint the executor or trustee, who is named in the will, or appoint one if there’s none 
• settle any issue, such as when the will is contested by the deceased’s beneficiaries, the heirs, or creditors 

Once validated, the court will issue a legal document (whose name differs in every province and territory). This will confirm the authority of the executor or trustee, among others. With this document, an executor or trustee can:  

• administer and manage the estate left by the deceased 
• pay taxes, the deceased’s creditors, and other payables 
• distribute the estate, following the will and the law 

The laws on probating a will are governed by provincial and territorial laws. They include the process of probate, rules on when it’s required, and probate fees. This is why the specifics of a probate process of one jurisdiction differ from another. 

As an example, here’s an overview of how probating a will works in British Columbia: 

Looking for lawyers near you to help you with the probate of the will of your loved one? Use our directory of the Lexpert-ranked best personal tax planning and estate lawyers in Canada. 

How does the probating of wills work? 

When required by the provincial or territorial law, the need for probate is triggered upon the death of a person. However, there are instances where probate is not needed, depending on what the provincial or territorial law says.  

Also, even if a deceased did not have a will, their estate may have to undergo probate or certain legal processes. Again, this will be based on what the estate laws of the province or territorial provide. 

Who can file for probate 

There are specific persons who can—or must—file for an application for probate, depending on the circumstance of the deceased: 

• if there’s a will: the executor or trustee, as named in the will 
• if there’s a will, but no executor or trustee: the deceased’s spouse, common-law partner, or any next of kin 
• if there’s no will: any next of kin or family member of the deceased, if probate is required 

Steps in probating a will 

The steps in probating a will are different in every province or territory where the application for probate is filed. The most common steps would be for the named executor or trustee, or someone who holds the will, to: 

• prepare and submit the required court forms 
• file the application for probate in the correct court 
• pay the court fees and/or deposit a court bond 

Example: probating a will in Ontario 

Below are the simplified steps in probating a will in Ontario, which are similar in some provinces: 

1. Prepare the court forms for probate: Under Ontario’s Rules of Civil Procedure, the forms for probate are: 

a. Application for a Certificate of Appointment of Estate Trustee and Small Estate Certificate (Form 74A) 

b. Affidavit of Service (Form 74B) or Lawyer’s Certificate of Service (Form 74B.1) 

c. Certificate of Appointment of Estate Trustee (Form 74C) 

d. Affidavits required, depending on the application (either Form 74D, 74E, or 74F) 

2. Serve the documents to interested parties: A copy of the application form must be sent to the estate beneficiaries (e.g. the heirs). The application must be signed by a commissioner for taking affidavits. 

3. Submit to the court some documents: The following must be submitted to the Superior Court of Justice: 

a. the original will 

b. the will’s additions or supplement (e.g. a codicil) 

c. the proof of death (e.g. death certificate or court order) 

d. the required court forms 

4. Pay certain fees, taxes, and bond: Upon application, the estate administration tax must be paid. In some cases, a bond is also required from the applicant, such as when: 

a. the deceased left no will 

b. there's a will, but it did not name an estate trustee, or the applicant is not a resident of Ontario or Canada 

If you think you need to undergo probate, it’s better to immediately consult an estate lawyer, right after the person who has a will just die. 

Here’s a video that explains more about probate, its fees, and how much the fees are per province or territory: 

To learn more about the costs of probating a will in your province, consult the best law firms for personal tax planning and estate in Canada as ranked by Lexpert. 

When is probate required? 

The general rule is that when a deceased has left a will, it must be probated before their estate can be distributed according to its terms. However, probate is not always required in some circumstances, depending on the applicable provincial law. 

For instance, in Alberta, probate is required when: 

• the deceased did not execute a will, or if there’s one, the will’s validity is contested by some other persons 

• the deceased has several bank accounts with significant amounts under their name, but these have no specific beneficiaries 

• the named executor or trustee in the will is already dead, incapacitated, or unable to fulfill their duties 

• the estate of the deceased is the beneficiary of their own registered retirement plans and other similar plans 

To add, the following cases are common to most provinces and territories on when is probate necessary: 

• when there’s a dispute on who should be the will’s executor, or the estate’s administrator or trustee 

• when the terms of the will are unclear, such as the description of the property, or the designation of the beneficiary 

• when there are allegations that the will is used to circumvent the laws on taxation, wills, succession, or estates 

Although there are exceptions to probating a will in Canada, it’s only for rare cases, as probate would usually be required. If you’re confused whether your loved one’s will have to be probated or not, it’s better to consult an estate lawyer. 

Exceptions to probate 

There are a lot of reasons why a will may not have to pass a probate proceeding. Here are some instances where probate is not necessary: 

• when the estate is held jointly, and an express condition provides that the properties will be passed to the holder of the joint asset upon the death of one (e.g. joint bank accounts or joint titles) 

• if the financial institution holding a particular asset, or all the estate, does not require a court-issued grant of probate (or a similar document) for it to be transferred to the beneficiary 

• certain forms of wills are exempt from probate in some provinces (e.g. in Québec, notarial wills do not need to be probated) 

• when the estate is too small, or when it does not exceed a particular amount, as provided by the provincial or territorial law 

Example of the last one is in British Columbia, where probate is not necessary for estates that are valued at less than $25,000. Regardless, some financial institutions that hold an asset, or the estate, may require probate before they can transfer it to the beneficiaries. 

How long does it take to probate a will? 

Admittedly, probating a will takes time. It can be as short as a month or take as long as a year or even more. As to when it should end, the period will depend on a lot of factors, such as the: 

• application process and if it’s correctly followed 
• complexity of the estate of the deceased 
• contentions that are raised against the will 

Of course, each province's and territory's rules would differ from one another. For example, in Ontario, applications for probate are processed by the courts within 15 business days. If successful, the applicant will be issued a Certificate of Appointment of Estate Trustee. Otherwise, the applicant may have to submit more forms or documents. In some cases, the application will have to be reviewed by the judge. 

What are the costs of probating a will? 

Probate fees will depend on two things: the amount of the estate and the province or territory where the probate is filed.  

Here’s a summary of the probate fees in Canada: 

These amounts may or may not include the filing fees and other court costs that must be paid along with the probate fees. Only the court and your lawyer would be able to tell you how much in total you would have to pay. 

Do you need a lawyer when probating a will? 

While a named executor, trustee, or loved one can do the probate process alone in certain provinces, it’s still advisable to seek the counsel of an estate lawyer in some cases. This will ensure that the deceased’s estate is properly taken care of and there are minimal problems when it comes to the probate process. 

Here are the instances when you would need an estate lawyer: 

• To know if you need to undergo probate: Each estate is a unique one, since each person would have different sets of heirs, beneficiaries, and properties. As such, it’s best to consult a lawyer to decide whether you should apply for probate of a will or not. 

• To apply for probate if necessary: After figuring out that you need to probate the will you’re in possession of, your lawyer can help you with the specific steps. Again, probate depends on the law of every province and territory. This emphasizes having a lawyer that understands the law in your locality. 

• To understand your role as trustee or executor: If you’re the named estate trustee or executor, your role is very important to settle the estate of the person who trusted you and put you in that position. To guide you in your role and to prevent any legal consequences, having a lawyer by your side would be helpful. 

Probating of wills: that dreaded, but really helpful, process 

While it may seem convenient to just disregard probate because it seems lengthy, costly, and stressful, there are cases where it’s necessary, as provided by the law. Instead of evading this important legal process, trustees, executors, and loved ones are recommended to consult with an estate lawyer. With their help, the process of probating of wills can go smoothly.  

Find more resources about probating of wills, and other answers to your legal queries, on our Legal FAQs page.