When is probate required?   When is probate not required?

Not all estates require probate, and a great many estates can be resolved quickly and informally without probate or any formal proceedings.

Whether or not probate  is required depends largely on:

  • the nature of the assets in the estate, and
  • whether the choice of executor, or actions of the executor, may be contested by one or more beneficiaries (inheritors) or other people.

Generally, financial institutions and land registry offices will require probate to confirm that the estate trustee is authorized to receive the assets and funds that belonged to the deceased person.

With respect to assets, probate will likely be required when the estate includes any of:

  • real estate (houses, condos, apartments, cottages) owned by the deceased in his or her name alone or as a tenant in common (not ‘in joint tenancy’);
  • shares of a publicly-traded company (stocks listed on a stock market); or,
  • funds or investments held at a financial institution (bank, trust company, brokerage) held solely in the name of the deceased and not ‘in joint tenancy’ with another person (note that sometime these institutions will not require probate if the amounts are nominal).

In terms of potential beneficiaries or disputes,the estate should definitely be probated if:

  • there is (or is likely to be) any dispute about the choice of estate trustee, or
  • the actions of the estate trustee are likely to give rise to any dispute, or,
  • any beneficiary is unable to consent (because they are a minor child, or, an adult lacking capacity).

Learn more about the duties of an estate trustee here.

You are not required to hire a lawyer in order to probate a will.  You can do it yourself.  However, as with many things in life, doing it yourself may not be the most efficient or effective way to proceed.  Executors have important obligations and can incur substantial personal liabilities if they make mistakes.  Often it is better to entrust things to an expert.  By the same token, however, one of the reasons that our consultation service is so popular is that we can provide advice to you on an ‘as and when needed basis’  without taking over responsibility for the whole matter.

 

 

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