What is Probate?
A letter of probate is a court order that authorizes an executor or administrator to handle the administrative matters of a deceased’s collective estate.
Probate is the process through which a will is validated, in court, and the executor or executors are appointed.
Probate is not required in every instance, and the answer to whether or not probate is needed depends largely on the complexity of the estate and the number of assets involved. Probate may be necessary where:
- There are questions about the validity of a will;
- There is dispute over executors;
- Proof of an executor’s authority is required for a third party (e.g. a bank that needs to release funds, a land title’s office that requires probate before land can be transferred from the deceased’s name to someone else); and/or
- There are significant assets in bank accounts or other investments.
Executrix Renounces After Letters of Probate Issued
In a recent Saskatchewan decision, a court denied an executrix’s attempt to unilaterally renounce after letters of probate had been issued by the court.
The testatorpassed away on November 12, 2016. His will appointed his sister to be the executrix of his estate. She applied for Letters Probate on October 4, 2017, which were granted on October 17, 2017.
The only asset in the testator’s estate was a piece of land which had an estimated value of $800. However, the estate also owed a considerable amount of debt, including a claim from the testator’s former lawyer of $23,747.
As a result, the sister purported to renounce probate because she had discovered that she could not transfer the land in the estate without paying for a valuation. In order to transfer title to the land, the sister needed permission from the public guardian and trustee and they required the land to be valued first; she stated that neither she nor the estate could afford to obtain the value of the land in question.
The main issue to be decided by the court was whether the sister could renounce as executrix of the estate after receiving Letters Probate.
Court Refuses Sister’s Renunciation
The court began by explaining that it is well-established that “[a]n executor, even after taking the oath of office, may renounce before, but not after, probate is actually granted”.
The court further observed that under Saskatchewan’s The Administration of Estates Act, a court may appoint an administrator in place of a “person who, by law, is entitled to a grant of letters of administration” and that case law suggests that the provision may be used to replace an administrator and an executor.
However, the court also noted that the sister had not applied to be removed as executrix. The court therefore explained that in order to be removed and replaced as executrix she must make such an application, with notice, and set forth evidence of her inability to administer the estate.
As a result, the court found that, while the sister may be removed as executrix of the estate after receiving Letters Probate, she could not renounce unilaterally.
The court therefore directed the Local Registrar to send a copy of the court’s decision to the Public Trustee, with a request that the Public Trustee indicate whether it would agree that the executrix should be removed and, if so, whether the Public Trustee would be prepared to apply to administer the estate in her stead.
If you have been named as executor of an Estate, it is important to talk to an experienced Estates lawyer as soon as possible to help you address the significant legal and financial responsibility that you now have, to help you manage the legal issues you may be facing, and to effectively mitigate any risks and liabilities stemming from the Estate, all while protecting it and taking care of any beneficiaries.
The exceptional lawyers at DBH Law are responsive and efficient, and can provide you with legal guidance for all of your Estate planning needs, including probate and Estate administration. We can be reached online or by phone at 403.252.9937.