PROBATE

On Wills, Estates, Trusts Law for residents in Canada  

When someone dies without a valid will (called intestacy), the Probate Court must then appoint someone to act as administrator (rather than executor) of the estate. The role of the administrator is similar to that of an executor named in a will. The administrator collects all money due to the estate and pays the debts.

After the death, the executor named in the Will files papers in the local probate court to prove the validity of the will and presents the court with lists of the property, debts and who is to inherit what is left and relatives and creditors are officially notified of the death.

Probate normally involves a lot of paperwork and court appearances by lawyers. The lawyers and court fees are paid from the estate property. The executor must find, secure and manage the assets during the probate process, which commonly takes about a year. In some provinces and states, immediate family members may ask the court to release short-term support funds during the probate proceeding.

All property do not have to go through probate when a person dies.  Most provinces and states allow a certain amount of property to pass free of probate or through a simplified probate procedure. In addition, property that passes outside of the will through joint tenancy or a living trust is not subject to probate.  
Probate is time consuming, expensive and in most cases unnecessary; so many people plan in advance to avoid it.  Therefore, Probate makes sense only if the estate will is complicated, e.g. many debts that cannot be easily paid from the property that is left.