A probated Will is a Will that confirms the executor and acknowledges his or her authority to carry out the terms of the Will. Most financial institutions require probate before they will release a deceased person’s assets because it assures the institution that it is handing over the deceased’s assets to the person who is lawfully entitled to receive them.
Without probate, the institution cannot be assured that the Will they have been given is in fact the deceased’s last Will. However, if probate has been obtained, even if the Will is challenged or ruled invalid or if a later Will is discovered (thereby revoking the Will), the financial institution cannot be held liable for releasing assets to the executor named in the probate.
When the value of the deceased’s assets is relatively small, the financial institution may require the executor to sign a Bond of Indemnity in lieu of obtaining probate on the Will. However, executors often find that administering the estate is easier when they obtain probate since it is unlikely that anyone will question their authority to gather and deal with the deceased’s assets.
In Canada, if you die without a Will (termed “dying intestate”), a court must appoint someone to administer your estate. The legislation provides who has priority to apply to be the administrator.
The court will issue Letters of Administration instead of a Grant of Probate in the following cases:
- A person dies without a Will (intestate)
- The deceased had a Will but did not appoint an executor
- All the executors named in the Will are deceased, unable to act or decline to act
To download a PDF document of the following steps please click here.