The assets of a deceased person are referred
to as an “estate.” There are a few different methods as to how an estate can be dealt with
or settled. Court of Queen’s Bench Rule 74 sets out all of the requirements for dealing
with estates in Manitoba. A Request for Probate can only be filed when
the deceased made a Will. The person named in the will as the Executor, or Executrix
in the case of a female, will file the Request for Probate. In addition to filing the Request,
the Executor or Executrix must also file an inventory of the assets of the deceased and
an affidavit in support. Additional documents may also have to be filed depending on the
circumstances. If no will can be found there is a presumption
that the deceased died without a valid will. The legal term to describe the situation where
there is no valid will is “intestacy.” At times the term “intestate” is used
to describe an estate where no will can be found.
The nearest living next-of-kin is usually the person who applies for a court order seeking
permission to settle the estate of the deceased person. This application is called a “Request
for Administration.” Only residents of Manitoba over the age of 18 are entitled to apply.
An inventory and affidavit in support will also be required. Additional forms will be
required if more than one person is entitled to apply. A bond will be required and a surety
or sureties to the bond may also be required depending on the value of the estate.
There is also a simplified procedure when the value of the estate is $10,000 or less.
That process is called a “Request for Administration Order under Section 47”.
Probate is often the term that is generally used to describe the administration of the
assets of a deceased person under any of the procedures set out above, regardless of whether
a will could be found or not. In some cases you may be able to administer the assets of
the deceased person without a court order. Some financial institutions, Land Titles Office,
life insurance companies and MPIC may permit the transfer of an asset belonging to the
deceased without a court order in certain circumstances. If you are not sure you should
consult with a lawyer for advice. All of the documents that are required in
the probate process must be prepared as set out in the Court of Queen’s Bench Rule 74.
All required forms can be found as set on the Manitoba Courts website. If you do not
have access to a printer, you can have them printed at any court centre for a fee.
You must go to the court centre with the necessary documents completed. All court locations can
be found on the locations page of the Manitoba courts website. The Deputy Registrar will
look over your documents to ensure that they are originals, ask that you pay probate charges
based on the value of the estate and file the documents to start the process. Keep in
mind that the Deputy Registrar cannot provide legal advice; therefore you are encouraged
to speak to a lawyer. After you file your documents they will be
brought to a judge for review. This review takes place in the judge’s office and not
in open court. After the approval of the judge has been given you will receive a signed Court
order which will allow you to take control of all the assets of the deceased that are
located in Manitoba.