The Probate Process – What to Expect

The administration of a deceased person’s estate can feel daunting and overwhelming, at a time when you are also dealing with the loss of a loved one. In Saskatchewan, the probate process is designed to validate the appointment of the executor in the Will. Understanding what to expect and how to navigate probate can help ease the burden during an already difficult time.

What Is Probate?

In simple terms, probate is the legal process through which a Will is validated by the court, and the executor (the person responsible for administering the estate) is officially authorized to manage and distribute the deceased’s assets. If no Will exists, the court will appoint an administrator to manage the estate, typically a close family member.

Steps Involved in the Probate Process

Identify & Value Assets & Debts: The application for Letters Probate will require a comprehensive list of the deceased’s assets, valued as of the date of death. The executor or estate solicitor will need to contact all financial institutions where the deceased had accounts, to get an estate summary as of the date of death. Contact information for all beneficiaries will be needed, as well as information on any beneficiaries who are deceased, in addition to a variety of other information.

Filing an Application for Letters Probate: To initiate the probate process, the executor must file an application with the Court of King’s Bench in Saskatchewan. This application typically includes the original Will, death certificate, and a detailed list of the deceased’s assets and liabilities. The application for Letters Probate will also identify all beneficiaries in the Will and various other legal components. If no Will exists, an application for Letters of Administration (instead of Letters Probate) is filed, asking the court to appoint an administrator for the estate. An application for Letters of Administration is slightly different than an application for Letters Probate and has additional legal requirements.

Court Review: The court will review the submitted documents to ensure the Will is legally valid and that it properly appoints the person submitting the application, as the executor of the estate. If the Will is valid and all else in the application is in order, the court will issue Letters Probate. The executor will produce a copy of Letters Probate anywhere they need to prove they are the properly appointed personal representative to act on behalf of the estate (i.e. at the banks).

After Letters Probate has been issued

Asset Collection: After Letters Probate have been issued by the court, the Executor will collect and if necessary, liquidate the deceased’s assets. This can include everything from bank accounts and real estate to personal property and investments.

Paying Off Expenses and Debts: Once the estate assets have been collected and liquidated, the executor is responsible for paying all estate expenses and any outstanding debts, including taxes, mortgages, and loans. Executors are advised to seek legal assistance with the payment of estate expenses and debts as there are legalities that apply to the orderly payment of expenses and debts that become very important if the estate has insufficient liquid assets to pay these. This step must be completed before distributing the remaining assets to beneficiaries.

Final Reporting: After all debts and expenses are paid, the executor provides a full accounting of the estate’s administration to the residual beneficiaries and if necessary, to the court. This report details all assets collected, expenses and debts paid, and how the remaining assets will be distributed. All residual beneficiaries must approve of the executor accounts prior to the distribution of the estate assets.

Distributing Assets to Beneficiaries: After all expenses, debts and liabilities have been paid and the residual beneficiaries have approved of the executor accounts, the executor distributes the remaining assets to the beneficiaries as specified in the Will or, if no Will exists, according to intestate laws. The executor must ensure that this process is completed in accordance with applicable laws and that all beneficiaries receive their entitled share. Legal assistance is strongly recommended as the law requires that a certain order be used to distribute estate assets to beneficiaries.

Common Challenges in the Probate & Estate Administration Processes

While the steps involved in Probate and estate administration may seem straightforward, several challenges can arise:

Disputes over the validity of the Will: Family members or other interested parties may challenge the validity of the Will, leading to delays in the process.
Complex asset structures: If the deceased owned multiple properties, a business, or had investments in different jurisdictions, the probate process can become more complicated.
Gathering Asset Information: Identifying and valuing assets and obtaining information from financial institutions can lead to delays in the application for probate;
Creditors’ claims: If there are unpaid debts or disputes over who is entitled to assets, this can further delay the estate administration process.
Order for payment: if there are insufficient liquid assets to pay administration expenses and debts, the executor will need to consider liquidating capital assets. The law also requires that executors follow a specific order for the payment of estate expenses, debts and the distribution of specific and residual bequests.
Insolvent estates: if estate expenses and debts exceed the value of estate assets, extreme care must be taken to follow the legal principles that apply to an insolvent estate.

Why You Should Consider Legal Help?

While some executors may choose to handle probate and estate administration on their own, we usually recommend seeking the guidance of an experienced estate lawyer. Executors have a fiduciary duty to act in the best interests of the estate and apply all relevant laws, even if they do not know they exist. There are many underlying legal principles that apply to the administration of estates that executors may not be familiar with. Having a lawyer manage the probate process and provide overall guidance for the administration of an estate, ensures that everything is handled correctly, which can save you time and reduce the risk of costly mistakes. A lawyer will also provide peace of mind by helping you understand your legal responsibilities and obligations as an executor, making the process smoother and less stressful.

By understanding the key steps involved and seeking professional help when necessary, you can navigate probate and estate administration effectively and ensure that the estate is distributed fairly and in compliance with the law. If you’ve been appointed as an executor or need guidance through the probate process, don’t hesitate to reach out. Our experienced team can help you every step of the way, ensuring that the probate process is completed efficiently and according to legal requirements.

Disclaimer: This Blog is intended to provide readers with general information. Each client’s circumstances and legal solutions might vary.