27th October 2011
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Wills Scenario by Travis Bisset

Amy had just finished drafting her Will for her family, preparing for the day when she would pass on.  Amy held some property that she planned to divide up between several people.  On the day she passed away, her Will was read and a problem was revealed – prior to distributing the property according to the Will, the bank and the Land Titles Office required that the Will go through the probate process.

Many people don’t realize how complicated the process of Wills can be and how some situations require special rules and methods.  In the specific case of dividing up real property in the sole name of the deceased, or estates with significant funds at a financial institution, as well as in a number of other cases, third parties may require that the Will go through probate.

Probate is a process whereby specific evidence is supplied to the Surrogate Court concerning the deceased, their property and the Will.  Once this is done and other procedures are carried out, the Court certifies or “probates” the Will.  The Grant of Probate, from the Court, gives an executor the legal authority to gather investments and bank account funds as well as sell or transfer any real property such as a house or cottage.

This is not as simple as writing a post-it note.  There is specific evidence and procedures that must be completed depending on the circumstances.  Sometimes, specialized legal research concerning a missing person or a court Application is required.  The sometimes complicated rules surrounding probate and estate administration procedures are designed to prevent fraud and other mismanagement and to protect third parties from relying on a more recent Will that is no longer valid.  The process usually does not require a court appearance but this is dependent on the specific circumstances.  If certain people are left out of a Will or the person’s capacity who wrote the Will is unclear, this may lead to litigation.  For these reasons, it is strongly recommended the probate application and the estate administration be prepared by a lawyer with an interest in this area.

For more information on probate and estate administration, please consult one of our knowledge lawyers for further information.

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Written by Travis Bissett