To Probate or Not to Probate

To quote Mr. Benjamin Franklin: “In this world nothing can be certain, except death and taxes”.  As such, it is important to ensure you have a proper estate plan in place.  As part of this plan, one must consider whether planning for probate is right for their estate plan.  Most people are familiar with the term “probate”, however, very few understand what it is or the benefits and disadvantages of probate.  In this article we will examine the pros and cons of probate with respect to an estate.

Before we get into the benefits and drawbacks of probate, it is important to understand what probate means.  Probate as defined in Black’s Law Dictionary is “the judicial procedure by which a testamentary document is established to be a valid Will”.  Simply put, it is the process whereby the court reviews the Will to ensure its validity.  This process requires the executor(s) to prepare an application enclosing the Will, setting out the background information regarding the deceased’s estate, who the beneficiaries are, and what assets are in the estate.  Once the Will is approved the court will grant probate and issue letters probate. These letters provide the executor(s) with proof of the grant of probate.

Pro: Proof of Executor’s Authority

One of the benefits of probate is that it can provide the executor(s) with proof of their authority to third parties (i.e.) creditors, beneficiaries, etc. when dealing with the estate.  This proof provides third parties comfort in knowing the executor(s) is the proper representative of the estate.  Further, this protects third parties from claims that are paid out to the wrong party.

Pro: Requirement When Dealing with Land

Although not truly a benefit, when dealing with real property (land), the Saskatchewan Land Title Registry requires letters probate before the executor(s) can deal with or transfer land.  As such, it is imperative, when land is part of the estate, the executor(s) apply for probate as part of the estate administration.  The executor(s) must also be aware of any minor beneficiaries as there may be additional requirements when dealing with land.

Pro: Creation of Time Limits

Another benefit with probate is that it can create time limits for claims against the estate.  The Family Property Act, section 30(2), states that no surviving spouse may make an application more than six months after the grant of probate or the administration of the estate of the deceased spouse.  The Dependant’s Relief Act, 1996, section 4(1), states that an application by a dependant must be made within six months of the grant of probate.

Pro: Protection by the Court

Finally, probate can provide the executor(s) protection by the court.  As part of the application, the court reviews the validity of the Will and confirms that the executor(s) has the authority to act under the Will.  The grant of probate provides comfort to the executor(s) that they can deal with the estate and not worry about competing claims.  It also provides protection to beneficiaries, as any claims under the estate are dealt with by the courts.

Con: Probate Fees

One of the disadvantages of probate is the cost of court fees required as part of an application.  In Saskatchewan, the probate fees are $7.00 for every $1,000.00 of probate-able assets. Probate-able assets include assets that are not held jointly, do not have a named beneficiary, and are located in the province where the deceased resided and passed away.

Con: Public Record

When the letters probate is issued, the estate becomes public record with the courts and can be searched by anyone.  If you do not wish to have your estate become public record you will want to ensure to prepare the appropriate estate plan.

Con: Additional Work for the Executor(s)

Another disadvantage of probate is that it requires additional work for the executor(s).  As stated above, the application requires the executor(s) to prepare documentation setting out the facts surrounding the estate and a complete listing of all the estate assets.  This may require additional time and effort to track down information by the executor(s).  If they choose so, the executor(s) can delegate this work to the estate lawyer and other professionals. 

Con: Timeline for obtaining Grant of Probate

When applying for the grant of probate, the application must be submitted to the court to be reviewed by a judge.  As such, this can take time for the preparation of materials and the review of the application.  If the judge has additional questions, it can add additional time before the letters probate is granted.  I advise clients to plan for approximately 2-4 weeks for the grant of probate from the time the application is submitted.  Typically, the executor(s) is unable to deal with the assets or to distribute them to beneficiaries until the letters probate is issued.

As you can see, there are many benefits and disadvantages to probate.  You will want to ensure you prepare an estate plan that best suits your needs.  Probate may not be the best for everyone.  One should consult professionals (lawyers, accountants, financial planners, etc.) to assist with developing the correct estate plan.  Contact Jeffrey Norwig to discuss the best options for you.