What is probate and is it necessary?

Probate is the proof of the deceased’s Will. In granting probate, the BC Supreme Court will certify that a document proffered as the deceased’s last Will is what it is purported to be.

A grant of probate will become necessary if the validity of the Will is called into question. If a grant of probate is necessary, the next question is whether the executor will seek a grant of probate in common form or a grant of probate in solemn form. Probate in common form is the procedure by which a Will is approved by the court as the last Will of a testator.

Probate in solemn form pronounces for the validity of the will and also confirms the appointment of the person named as executor in the Will. Agencies and financial institutions that hold assets in an estate generally require that a Will be probated before allowing an executor to access the assets.

Until a grant of probate is issued, the executor does not have any legal right to deal with the assets of the deceased. In British Columbia, before applying for the probate grant, the executor needs to send a notice of their intention to apply for the grant to certain people, including every beneficiary named in the Will.

In order to obtain a grant of probate of a Will, the Will must be proved to the court on the basis of affidavit evidence filed with the court by the executor.