What Is Probate?

Understanding Probate in New Brunswick: A Guide to the Legal Process

Definition of probate and its role in managing a deceased person’s estate

Probate is the legal process of administering the estate of a deceased person. It involves validating their will (if one exists), identifying and inventorying the deceased person’s assets, appraising the value of the assets, paying off any debts and taxes owed by the deceased, and distributing the remaining assets to the beneficiaries as outlined in the will.

In the probate process, the testator’s Last Will and Testament is determined by the court to be the testator’s legally valid Will. The probate process also vests the executor or estate trustee with the authority to administer the deceased’s estate and to distribute the estate to it’s beneficiaries

If you have been named as the executor in someone’s Will, you will have to navigate the probate process unless the estate is very small. In cases where there are few assets to distribute and where the value of those assets is not large, you may be able to deal with that estate without going through probate.

In cases where there is more value in the estate, financial institutions such as banks, trust companies, stock brokers, real estate brokers, insurance companies will not accept the executor’s authority to deal with estate assets if a Certificate of Probate has not been granted by the court. This certificate provides all parties with the assurance that the administration of the estate and the distribution of estate assets is being supervised and approved of by the court.

Probate ensures that the deceased person’s final wishes are carried out, debts are settled and assets are properly distributed. The process can be lengthy and complex, involving court appearances and legal fees. However, it is necessary to ensure that the deceased person’s estate is managed properly and fairly.

Finally, an executor can be personally liable for any losses suffered by the estate due to mismanagement. Accordingly, it is always advisable to seek the assistance of a probate attorney to help navigate the probate process and ensure that everything is completed correctly and in accordance with the law.

The typical steps involved in the probate process include filing a petition with the probate court to open the estate, notifying creditors and beneficiaries, taking an inventory of the deceased person’s assets, paying off debts and taxes and distributing the remaining assets to the beneficiaries. The court will oversee the process to ensure everything is handled properly and in accordance with the law. The probate process can be lengthy and costly, so it’s important to work with an experienced probate attorney to guide you through the process efficiently.

Explanation of who is responsible for handling probate

In most cases, the responsibility of handling probate falls on the executor named in the deceased person’s will. The executor is chosen by the deceased individual and is usually a trusted family member or friend. If there is no will or no executor named, the court will appoint an administrator to handle the probate process.

The executor or administrator is responsible for gathering and inventorying assets, paying debts and taxes, and distributing the remaining assets to the beneficiaries according to the deceased person’s wishes or state law. It is important for the executor or administrator to follow the proper legal procedures and deadlines to ensure the efficient and accurate distribution of the estate.

Circumstances that determine whether an estate goes through probate

Whether or not an estate goes through probate depends on a variety of circumstances. One factor is the size of the estate – in many states, smaller estates may be exempt from probate or may qualify for simplified probate procedures. Additionally, the presence of a valid will can also impact whether probate is necessary. If the deceased person had a will that clearly outlines how their assets should be distributed, the probate process may be straightforward.

On the other hand, if there is no will or if the will is contested, the estate may need to go through a more complex probate process. Ultimately, the specific circumstances surrounding the deceased person’s assets and wishes will determine whether or not their estate goes through probate.

How probate affects beneficiaries and heirs

This process can have a significant impact on the beneficiaries and heirs involved. Firstly, probate can be lengthy and costly, as it often involves court fees, attorney fees and other administrative expenses. Probate can also lead to delays in the distribution of assets, which can be frustrating for those expecting to inherit from the deceased.

Furthermore, the probate process is also public, meaning that the deceased person’s assets and debts become a matter of public record. This lack of privacy can be uncomfortable for some beneficiaries and heirs.

Overall, it is important for individuals to understand how probate works and potentially explore ways to avoid it, such as setting up assets that are jointly held, a living trust or naming beneficiaries on assets like life insurance policies and retirement accounts.

Potential complications during probate and how to navigate them

While probate is intended to be a straightforward process, there are potential complications that can arise. One common complication is disputes among family members over inheritance. This can lead to costly and lengthy legal battles that delay the distribution of assets.

Another issue is when the deceased person’s estate is not properly planned, which can result in confusion over how assets should be distributed. To navigate these complications, it is important to have a clear and detailed estate plan in place that outlines how assets should be distributed. It is also important to communicate openly with family members to prevent misunderstandings and disputes.

Overview of probate alternatives and ways to avoid it

There are probate alternatives that can help individuals avoid the lengthy and expensive probate process. One common alternative is setting up a living trust, where assets are transferred to a trustee who manages them on behalf of beneficiaries.

Another way to avoid probate is through joint ownership of property or assets with rights of survivorship, meaning that ownership automatically transfers to the surviving joint owner. Designating beneficiaries on retirement accounts, life insurance policies, and bank accounts can also help assets bypass probate and go directly to the intended recipients. By exploring these probate alternatives, individuals can ensure a smoother distribution of their assets and avoid the complexities of the probate process.

Understanding probate fees and expenses

These fees can vary depending on the state in which the probate process takes place, as well as the complexity of the estate and the services required. Common expenses include court filing fees, attorney fees, executor fees, appraisal fees, and other administrative costs.

It is important for individuals to understand the potential fees and expenses involved in probate so they can properly plan and budget for them. In some cases, it may be possible to minimize probate fees by utilizing strategies such as creating a living trust or designating beneficiaries for certain assets.

Importance of legal advice and seeking the help of a probate professional

Legal advice and seeking the help of a probate professional is crucial when dealing with matters related to estate planning and inheritance. Navigating probate can be complex, time consuming and overwhelming, especially during a time of grief and emotional distress. A probate professional can provide invaluable guidance and support, ensuring that the deceased’s wishes are carried out according to the law. In addition, seeking legal advice can help prevent misunderstandings or disputes among family members, ultimately saving time and money in the long run.

Grant Edward Rayner B.Comm., LL.B.
Barrister & Solicitor
Senior Family Law Associate at Langdon Law*
Tel: 506-496-5872
Mobile: 226-228-1663

*Licensed to practice in New Brunswick and Ontario.