Meaning of Probate

Probate means the process of “probating” a will.

Probating a will means satisfying the court that the will is the last will and testament of the deceased. In Ontario, Canada, the application for probate is called an application for a certificate of appointment of estate trustee with a will.

Probating a will entails submitting to the court all the documents required under court rules. It usually requires giving notice to all persons entitled to share in the distribution of the estate under the will, which usually means all the people named in the will.

The documents required for probate typically include:

• the application document;
• the will itself (which is attached to the application); and
• the affidavit of:
  • the witness to the signing of a formal will; or
  • a person attesting to the handwriting and signature of a holograph will (a will written entirely in the will-makers handwriting and signed by the will-maker).

For a simple probate application, a court clerk reviews the probate application paperwork and, if satisfied, will grant a probate certificate (in Ontario, Canada this is called a certificate of appointment of estate trustee with a will).

In more complex probate applications, the paperwork will be reviewed by a judge.

There is no hearing in open court. Unless a judge directs otherwise, no further evidence is required to prove the will in common form.

The important thing to note is that probate is not conclusive proof of the validity of the will. It is, however, sufficient to enable the executor (the person named in the will to pay the deceased’s debts and distribute their assets) to deal with banks and others while administering the estate. The probate certificate helps assure banks and others that the executor has proper authority.

Probate does not prevent people from commencing proceedings to challenge the validity of the will, such as by claiming the deceased lacked capacity to make the will or was unduly influenced to make the will.

For conclusive proof of the validity of the will, the will must be “proved” in solemn form.

This is explained in detail in the article What Does it Mean to “Prove” a Will in Solemn Form?