Recently a number of callers have asked about probating a will.  To help readers understand probate in general terms we asked Brian Loughlin of LawOne member firm RDM Lawyers to answer a few basic questions.  The results are below and if you have further questions you are welcome to contact Brian at your convenience.

LawOne:  What exactly is probate?

BL: Probate is a legal procedure where your Will is approved and the appointment of your executor is confirmed by the courts under BC legislation.  Your executor is the person responsible for making sure debts existing at the time of your death are settled and the wishes set out in your Will are carried out.

LawOne:  Is probate necessary in every case?

BL:  That depends on factors such as the simplicity of the estate, the character and value of the assets and the number of dependants in your Will.  It may be that your Will does not have to be probated, although very often, whether it is by choice or circumstance, a Will may end up being probated.

LawOne:  Why would an executor want a Will probated?

BL: There are a number of reasons. For example, if the executor has not been through the legal confirmation process (i.e., probate), third parties such as government agencies and banks can, and often do, refuse to recognize the executor’s authority until the courts have validated the Will.  This can slow down the distribution of assets to beneficiaries. Whenever a Deceased’s estate holds land a probate will be necessary. There are also some situations where applying to probate a Will may be advantageous.

LawOne:  Can you give an example?

BL:  In British Columbia the time period for commencing an action under the  Wills Variation Act (the “Act”) does not start to run until probate has been issued by the court.  Under s. 3 of the Act if a Deceased’s spouse or child seeks to challenge a Will under the provisions of the Act he or she must start their action within 6 months of the issue of probate (6 months from the date the court approves the Will and confirms the appointment of the executor). If you are an executor your job is to ensure the settlement of the debts of the deceased’s estate and the smooth distribution of assets to beneficiaries under the Will.  Therefore, it’s to your advantage to take steps to confirm the date after which a Will can no longer be challenged so as to avoid any liability attached to incorrect or unjust distribution of the assets under the Will.  Similarly, if you are a person seeking to challenge a Will, determining when probate was issued is critical to establishing whether you are within the limitation period set out in the Act.

LawOne:  Do you really need a lawyer to probate a Will?

BL:  No.  However, probating a Will can be complex and time consuming.  Most executors have other responsibilities and commitments that demand their time and attention.  In addition, an executor can become personally liable for certain obligations if the estate is not administered in accordance with our laws.  Having a lawyer take care of probate and advising with respect to the administration of the estate is one way to help minimize an executor’s personal liability.