I'm the Estate Trustee...How Do I Obtain Probate?
I’ve previously blogged about how a prospective estate trustee obtains probate when there’s no will, so today I thought I’d review how an estate trustee appointed under a will goes about obtaining probate (technically referred to as a “certificate of appointment of estate trustee with a will”).
An estate trustee should first determine whether probate is actually necessary. There is no law that requires an estate trustee to obtain probate – the estate trustee’s authority derives from the will itself, not a certificate of appointment. However, frequently an estate trustee cannot take many administrative steps (such as calling in the proceeds of a bank account or transferring title to real estate) without having obtained probate.
The material that the estate trustee must file with the court is set out in rule 74.04 of the Rules of Civil Procedure. The necessary materials include the completed application, original will, an affidavit of execution establishing that the will was duly executed (and if one cannot be obtained, evidence that the will was duly executed), the certificate of appointment of estate trustee with a will, and an affidavit verifying that a notice of application has been served on those entitled to share in distribution of the estate.
If there are unborn or unascertained beneficiaries of the estate or if a beneficiary is a minor, then The Children’s Lawyer and the minor’s parents must be served with the notice of application. If a beneficiary is incapable then The Public Guardian and Trustee must be served. An estate trustee applying for probate is justified in hiring a lawyer to prepare and file the application (and paying for the services out of the estate). However, for the do-it-yourselfers, pre-formatted and fillable forms are available on the government website.
The estate trustee is also required to pay the necessary probate fee (referred to as the “estate administration tax”) when the application is made. The amount owing is based on the value of the estate. The estate trustee does not have to pay the amount personally. Generally speaking, banks will release a bank draft from the deceased’s account payable to the minister of finance for the amount due.