Probate

In order to perform many actions on behalf of an estate in Manitoba, an executor will need to file a Request for Probate. From there, the Will must pass the probate process. Learn what probate is, what happens during the probate process, what fees are associated with probate, and more. 

What is probate?

Probate is the legal process that a Will goes through in order to be considered valid. There are good reasons a Will needs to go through the probate process.

Institutions such as banks have no way of confirming that a given Will is a person’s last Will. Someone could, hypothetically, present an invalid Will to those institutions (such as a Will that was drafted before the testator’s last Will). Without the probate process, institutions would have no way of confirming the validity of a Will.

When probate is passed, the probated Will is considered valid, and an executor (or co-executors) is/are confirmed. This enables the executor to follow the Will, in accordance with the final wishes of the testator.

What happens during the probate process?

During the probate process, the courts establish whether or not a Will is valid. The process starts with a Request for Probate - this request is filed by the executor listed on the Will. When no executor is named, another party (usually next-of-kin) may apply for probate as the administrator of the estate.

The Request for Probate process is complex, and requests filed by executors without legal experience are often rejected. For this reason, we recommend that you hire a lawyer in order to assist you with the probate process. The legal fees incurred during the probate process can often be covered using assets from the estate.

In order to file the Request for Probate, executors (and/or their lawyer) need to find all of the estate’s assets, as well as the names and addresses of all beneficiaries. This process can be time-consuming. Once that information is obtained, the Request for Probate can be filled and signed. From there, it generally takes about 2-4 weeks for the courts to approve the Request for Probate.

During this time, legal challenges to the Will may emerge. These challenges can vary in nature - a Will that was drafted after the Will being probated may emerge, or someone may challenge the Will being probated as being invalid for other reasons (such as the testator not being of sound mind when the Will was created). 

The more legal challenges there are to a Will, the longer it will take for that Will to be probated, and for Grant of Probate to be given to the executor(s). 

At one point in time, the Province of Manitoba charged fees for the probate process. These fees were abolished in 2020; as of the time of writing of this article (November, 2021), there are no probate fees in Manitoba.

Does every Will go through probate?

Not every Will needs to go through probate. Probate is only necessary if institutions need confirmation that a given Will is valid.

In other words, if there are no assets to be transferred to beneficiaries, there is no need for probate. 

Many assets can be transferred without the need for a Will - the CPP Death Benefit and life insurance paid to beneficiaries are good examples. Another case in which probate may not be necessary is when all assets are held jointly by two spouses, and one of the spouses passes away. All assets would automatically be transferred to the second spouse, and probate would not be needed.

For estates valued under $10,000, probate may not be required. These estates can be handled through a process known as an Administration Order - Administration Orders can be used regardless of whether or not there is a Will, as long as the value of the estate is under $10,000.

Isn't probate expensive?

Most executors will be able to obtain Grant of Probate (the term for the document which confirms that a Will is probated and that the named executor can take actions on behalf of an estate) at no cost to themselves. 

This is because Manitoba has eliminated probate fees, and because of a longstanding practice which enables executors to withdraw money from an estate in order to pay certain legal fees necessary for the administration of that estate.

The only circumstances in which probate may become expensive are those in which the executor opts to pay out of pocket for legal expenses. These scenarios are exceedingly rare.

Conclusion

The probate process is essential if an executor needs to interact with financial institutions, sell property, or perform many other asset-related actions in order to fulfill the wishes of the testator, as set out in the Will.

Fortunately, in Manitoba, the financial cost of probate is practically non-existent for the executor.

We hope this guide has helped you to better understand the importance of the probate process, and what’s entailed in granting probate. You can learn more about probate on the Probate Division web page. Contact Alterna Cremation for more info on legal advise regarding wills and funerals.

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