Probate Notice Period: Who needs to be notified?

For most wills, before the executor can begin administering the estate, they must file for probate and be granted probate from the courts. Probate is the court process which confirms the validity of the will and grants the named executor the authority to take control of the estate assets for administration. Before the probate process begins, there is a probate notice period where the executor must notify specific people that they have filed the estate for probate. A will being granted probate can have consequences for those wishing to take legal action and challenge the will. Further, for will-writers looking to disinherit, it’s important to understand that probate can not be done in secret and there are requirements that specific people be notified of the probate application.

Who is Entitled to Notice?

Per rule 25-2 of the Supreme Court Civil Rules, the executor who is intending to apply for probate must notify interested parties at least 21 days before they submit the probate application. Further, the executor must provide a copy of the will for each person who is to be notified. The people who are entitled to this information and a copy of the will include:

• All executors and alternate executors of the will,
• All beneficiaries of the will, and
• Anyone who would have been an intestate successor, assuming a will was not written and the estate was larger than what the spouse would inherit.

The intestate succession amount going to the spouse is based on the family members that the will-writer predeceased. Depending on if the will-writer has a spouse or children, the intestate successors can vary. For more information, read our blog on how assets are distributed in intestacy. Anyone who would be entitled to parts of the estate in intestacy (spouse and children, including adopted children) would be entitled to a notice of probate like anyone else listed above would.

In cases where the deceased didn’t write a valid will, the above list is not fully relevant. While there isn’t a will, the estate will likely still go through probate – the person’s estate must be administered and distributed even in intestacy. The people entitled to a probate notice for an intestate estate include:

• Anyone who is an intestate successor, assuming the estate is larger than what the spouse will inherit and
• Any creditor who is seeking greater than $10,000 from the estate.

In other special circumstances, a deceased Nisga’a citizen’s executor must provide notice to the Nisga’a Lisims government and a will-writer who is a member of a treaty first nation is to have notice provided to the treaty first nation.

What This Means for Will-Writers

For will-writers, this shouldn’t be a concern unless you had plans to disinherit someone from your will. People who want to disinherit an estranged child usually assume that they can do this in a private manner and without the child knowing until after the estate is distributed. This usually isn’t the case as the executor will notify the child of the probate application. From there, it’s safe to assume the child will challenge the will if they’ve been unfairly disinherited. See our blog on invalid (and illegal) reasons for disinheriting a child.

What This Means for Beneficiaries

Sometimes, beneficiaries of a will don’t know that they’re a beneficiary and worry whether they’ve been left out of the will. If you receive no notice of probate, and you’re not someone who falls under the intestacy succession plan, you were likely not named as a beneficiary in the will. However, if you would have been entitled to a portion of the estate if it had fallen into intestacy, you could be someone with standing to bring a claim against the estate if you were excluded from the will.

What This Means for Executors

Executors need to be aware of these requirements and ensure they know who is entitled to a notice of probate. The estate administration process can be a lengthy journey, and the last thing you want to do as an executor is further complicate the process.

If you’re unsure who will be entitled to a probate notice for your estate, contact an experienced estate lawyer today. We can help to clarify how the estate administration process will be handled, ensuring that there are no surprises or unexpected results after you pass away.

Have a question about this topic or a different legal topic? Contact us for a free consultation. Reach us via phone at 250-888-0002, or via email at info@leaguelaw.com.