The Probate Process: When there is Will

probate will

Sometimes even with a will, “probate” is required for the estate trustee (named in the will or seeking to be appointed) to give out (distribute/administer) certain assets (for example, real property such as a house or condo, bank accounts held in the name of the deceased, etc).

The estate trustee may also wish to “probate” the will which allows them to prove the will and register the will in court.

The probate process is a legal procedure which asks the court to give a person the authority (appoint them) as the “estate trustee” of the deceased’s estate.

The role of the Estate Trustee is to administer (give out) the estate and to:

  • Attend to funeral arrangements
  • Prove the will
  • Protect estate assets
  • Pay creditors, satisfy liabilities (such as taxes)
  • Distribute (give out) specific bequests and residue (what is left) of the estate

As there is a will, the estate trustee must follow the terms of the will in their distribution (giving out) specific bequests and residue (what is left) of the estate

In the case when there is a will, the will typically includes the name of the individual that the deceased wants the estate trustee to be. This named individual usually applies to start the probate process.

When there is a will, the probate process essentially approves the will as valid (meaning legitimate) and grants the named person as the estate trustee.

What happens if the named person is unable to act as the estate trustee? Then the deceased’s estate will be interpreted as having no named estate trustee and a family member or corporate trustee (institutions such as a bank) can apply to be appointed as estate trustee.

Applying for Probate

There are two types of probate applications:

  1. If the value of the estate is between $0-$150,000, then you are applying for a Small Estate Certificate.
  2. If the value of the estate is more than $150,000, then you apply for a Certificate of Appointment of Estate Trustee.

Probate may not always be required. For example, if all of the deceased’s assets (what they owned) were held jointly.

For instance, check the deed/“title” to your home: who is as the owner? If the owner is the deceased and another person as “joint tenants, then the house passes outside of the estate to that other person, the living person through the “right of survivorship”).

If the deceased’s estate includes assets (things they own) that are held in their name alone, for example, then probate may be required to give out (administer) this asset.

Overview of the Probate Process


Court Forms

It will be required that you provide and/or complete various forms such as:

    1. The original will
    2. Proof of death
    3. Court Application Forms
    4. Affidavit of Execution (a form signed by the person who witnessed the will)
    5. Other forms may be required depending on your specific situation.

The value of the estate’s assets is identified

While filling out the application forms, you will be required to identify the value of any real property (e.g., homes, land) and the value of the deceased’s personal property (furniture, jewelry, artwork, beneficiary bank accounts etc.)

You should be aware that there is an Estate Administration Tax that will be calculated based on the total value of the deceased’s estate when a certificate is applied for and issued. The Estate Administration Tax is due to be paid when the probate application is filed.


Serve (deliver) Documents to All Required Persons

Before submitting all necessary forms to the court, you must serve (deliver) a copy of the application to any individual entitled (owed) a piece of the estate (unless seeking deferral).


Submit All Required Documents to the Court

All required paperwork must be submitted in the county/district that the deceased live in when they passed away. When submitting the application to the court, you must pay the Estate Administration Tax as a cheque payable to the Minister of Finance.



What is a bond? A bond is a legal agreement by the estate trustee that ensures they take responsibility for their duties in line with the law. If the estate trustee fails to do so, they are obligated to pay an agreed sum of money. The bond acts as protection in case of financial (money) loss due to an estate trustee’s dishonest actions or mistakes. Bond is usually equal to double the value of the estate. Your lawyer may assist you in seeking to waive the bond.

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