Probate Lawyers Canada - Estate Administration & Trusts
Most citizens of Canada will leave assets when they die which must be distributed to their beneficiaries either upon the instructions of the deceased, contained in a valid will or where there is no valid will in accordance with the law which sets out rules for the distribution of assets in such cases. Our probate lawyers deal with the estate of a deceased person in cases where there is a will or in cases where there is no will by applying the intestacy rules which dictate subsequent distribution to next of kin. In the event that there is no next of kin who can claim as a beneficiary, then the assets are forfeit to the state. It is therefore of some importance for those who want their probate lawyers to distribute their assets in accordance with their wishes, to ensure that they leave a competent will that their executors or administrators can follow, to ensure satisfactory distribution. If you have any queries relating to the administration of an estate, our probate lawyers offer free advice with no further obligation.
Grant of Probate
A Grant of Probate is a document obtained from a court of law to confirm the authority of an executor named in a will, who has the power to administer the estate of the deceased by collecting in the assets and thereafter paying out creditors in accordance with legal priorities before distributing the residue to the beneficiaries in accordance with the will. The actual document (or a certified copy) is usually forwarded to a financial institution by a probate lawyer to verify the authority of the executor when seeking payment of monies due into the estate account.
Letters of Administration
A Grant of Letters of Administration occurs where there is no will, which gives authority to the applicant, who is usually a potential beneficiary, to deal with the assets of the estate. A Grant of Letters of Administration with Will Attached is another authority granted by a court in cases where there is a will but there is no named executor in that will. The court appoints an administrator in this case who is usually a beneficiary represented by a probate lawyer. An executor derives his powers from the will and an administrator from the grant by the court. The duties of an administrator are almost identical to those of an executor in possession of a grant of probate.
Administering an Estate
Both an executor and an administrator have similar powers and duties regarding the estate of the deceased. In both cases they are expected to collect in (and protect) all assets comprising the estate of the deceased and to thereafter pay the debts of the deceased, some of which may by law have priority of payment over others, and thereafter distribute the assets. Distribution in the case of an executor under a grant of probate or an administrator under a grant of administration with will attached is carried our according to the instructions contained in the will whereas distribution where there is no will follows the intestacy rule whereby next of kin and relatives inherit according to a formula laid out by law. In the event that there are no relevant relatives under the intestacy rules then the residue of the estate after payment of all valid liabilities is claimed by the state. In all cases the executor or administrator remains personally liable for all erroneous actions as a result of which most estates are professionally represented by insured probate lawyers.
Disputed Probate – Challenging a Will
Disputing probate and challenging wills are a specialist legal topic carried out by estate litigation lawyers. The main areas of dispute relate to invalid wills that have not been signed and executed in accordance with law, wills that have been made by the mentally incapacitated especially the elderly and disinherited dependents. :-
- An invalid will can either mean that a previous will takes precedence or where there is none that the intestacy rules apply. In both cases ultimate distribution of the assets may be contrary to the intention of the deceased.
- A will is only valid if the person making it had full mental capacity at the time of signature and execution. A will made by a mentally incapacitated person or a vulnerable elderly person may well be challenged.
- If the deceased failed to provide for a dependant, as defined by law, then that dependent can challenge the will to claim maintenance which may extinguish the inheritance of the named beneficiaries.