What is Probate?

(November 2001)

by Del Elgersma

Probate is an application to obtain court confirmation of the validity of a Will and the authority of the executor of the Will. The application is made by filing at least two affidavits certain other documents with the court registry. If the court approves the application and the probate fees are paid, it will issue Letters Probate. A more complicated procedure is required if the will is or may be disputed.

Probate usually becomes necessary because third parties, such as financial institutions, ICBC or the Land Title Office, want assurance that the executor has the authority to deal with a particular asset.

An executor's authority, however, comes from the Will and not the Letters Probate. There is, therefore, no requirement that every Will be submitted to probate. In fact, with proper planning, many estates can be processed without a probate application, saving thousands of dollars in probate fees. Click here to find out about some of the strategies to achieve this.

Here are some more facts about probate:

• probate fees are actually a tax
• application fee of $208, then 0.6% of estate value between $25,000 and $50,000, and 1.4% of estate value over $50,000
• fees payable on entire value of estate assets within BC (less only registered mortgages), even if probate only required to deal with only one asset
• if no will, application is for Letters of Administration rather than Letters Probate (same probate fees apply)
• usually application made in "common form"
• application in solemn form may be required if will is disputed (involves a trial)