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A loved one has passed away, and you have been named executor. What now? As executor, you have several responsibilities. Follow the link below to download your free step-by-step guide. We hope you find this information helpful during this difficult time.
A few things to know:
The executor/trix responsibility is to manage the estate. This includes tasks like funeral arrangements, identifying beneficiaries, retaining a lawyer, and so on.
Probate is required to transfer real estate, or funds held by institutions like banks and credit unions. However, probate is not always necessary.
Terms such as “probate”, “executor” or “executrix” are not commonly used. These terms are normally used by lawyers and have a tendency to intimidate people. Why must it be so complicated?
As in any subject, a little education will go a long way. These terms are unique to our legal system and this explains why they seem so mysterious. But let’s shed some light on the subject. Below, you will find a list of commonly asked questions with answers.
1. What is probate?
It depends who you ask. Wikipedia defines probate as the a court process that “proves a will”. However, in Manitoba, the Wills Act establishes the criteria for a valid will. If the will is valid, then it doesn’t need a process to prove it. I prefer to think of probate as a legal process whereby third parties can rely on a grant of probate for protection.
2. Why is probate necessary?
Third parties who hold the deceased’s assets (think banks or credit unions) will require some kind of protection before letting someone who claims to be executor access those assets. For example, someone names a nephew in Halifax as executor and leaves all of his or her belongings to him. After the testator’s death, the nephew shows up at the bank in Winnipeg with a copy of the will and asks the bank for a bank draft for all the money in the testator’s bank account, being approximately $57,000.00. The bank representatives would justifiably be concerned about fraud. How do they know that the will is valid?
The bank will ask that the executor obtain a grant of probate (essential a certificate from the court “probating” the will). The bank will then be able to rely on that document. If someone comes at later time claiming fraud, the bank will not be responsible.
3. Is probate necessary?
No. Probate is not always required. Because, as long as a will meets the requirements of the Will’s act, it is valid. Probate is only necessary when an institution holding the assets of a deceased asks for a “grant of probate” or “letters of probate.”
Probate is always required if the deceased owned real property (a house, cottage, vacant land, commercial property, rentals, condo or agricultural land) in his or her own name.
4. What happens when someone dies without a will?
Someone who dies without a will dies intestate. The Intestate Successions Act governs when this happens. The act sets out a distribution priority. For example, if the deceased is married with children from that marriage, all will go to the spouse. The act also sets out a priority for those who can apply to court to have letters of administration issued.
Letters of administration are essentially the same as letters of probate, except that there is no will to probate. The court will issue a document appointing an individual as administrator. The administrator is the person who distributes the assets in accordance with the Intestate Successions Act.
5. How much time does it take to probate a will?
Unfortunately, I have no standard answer. It depends… First, it depends on how quickly the executor can round up all the necessary information. Lawyers need a list of all assets at the time of death (including bank and investment statements), the names and addresses of all beneficiaries, and funds to pay for the probate fees.
Once we have all that information, we can prepare the request for execution. Once signed, we submit the request to court. The court approval can take anywhere from a two to six weeks. Overall, the process can take anywhere from 6 weeks to several months from the first appointment to final distribution.
6. How much does probate cost?
If you need to probate a will, the estate will be responsible for two costs or fees. The first fee – probate fee – is payable to court. In Manitoba, it amounts to 0.07% on the value of the estate. For example, if an estate is worth $300,000.00, the probate fee will be $2,100.00. You can calculate it below.
The estate will also be responsible for the legal fees. The court sets out a tarif that lawyers use to calculate fees. It’s more complicated than it should be.
- 3% on the first $100,000, or portion of that amount, of the total value of the estate, subject to a minimum fee of $1,500;
- 1.25% on the next $400,000, or portion of that amount, of the total value of the estate;
- 1% on the next $500,000, or portion of that amount, of the total value of the estate;
- 0.5% on the total value of the estate over $1,000,000.
It is important to remember that this is a guideline, and not automatic. The fees will vary depending on the work involved. If the executor is organized and provides everything in a timely fashion and the beneficiaries cooperate, the fees should be lower.
7. How much are Executor fees?
Many people believe that executors can charge a fee based on a certain percentage of the estate. While in some cases 1% is appropriate, a percentage based approach is not recommended. Courts have long held that it depends on the work involved. A small complicated estate may warrant high fees where as a large simple estate may not.
Our duties as your Estate Lawyers
We will assist with reviewing the will, preparing request for probate, advising you and much more.
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