Do You Need Probate in Manitoba? When a Grant Is Required

When someone close to you dies, one of the first practical questions is whether the estate has to go through the court. In Manitoba, the answer depends on what the person owned and how each asset was held.

Not every asset needs a court grant, and some estates need none at all. This page explains the general rules so you can see where your situation probably fits, and when it makes sense to talk to a lawyer.

This article covers the law of Manitoba.

The general rule: assets in the deceased's name alone

A will must be probated only if there are assets in the deceased's name alone. Probate is the court process that confirms a will and gives the executor a grant, which is the document institutions usually want to see before they release sole-name assets.

In Manitoba, the Court of King's Bench, Probate Division, in Winnipeg is the central registry for all probate matters. Grants of probate or administration may be made at any judicial centre, and a grant made at one centre has the same force and effect as one from any other and applies throughout Manitoba.

Assets that can pass without a probate order

Some assets can transfer without a probate order. The court's own guidance gives these examples:

• The CPP Death Benefit.
• Life insurance proceeds payable to a named beneficiary.
• Jointly held property with a right of survivorship.

Whether a particular asset really falls into one of these groups depends on how it is held and on the paperwork behind it. Banks, insurers and other institutions may also ask for their own documents, so it is worth checking with each one.

Small estates of $10,000 or less

If the total value of the deceased's property does not exceed $10,000, the court may order property paid or delivered to a designated person without a grant. Funeral expenses and debts are paid first, and the balance goes under the will or to next of kin, or to the Minister of Finance if none is found.

For this kind of order, the grant, inventory and bond provisions of the Act do not apply. The forms are Form 74FF (Request for Order under Section 47) and Form 74GG (Order under Section 47).

When there is no will or no executor able to act

Letters of administration are the alternative grant where there is no will or no executor able or willing to act. Probate is granted to the executor named in the will, whereas an administrator is appointed by the court.

Administration shall not be granted to a person who is not habitually resident within Manitoba. There is also a special case: if the deceased was a registered Indian under the Indian Act (Canada) and lived on a reserve at death, Rule 74 does not apply and a request goes to the federal government instead.

An administrator must give a bond to the judge, and unless it is reduced, the total bond must be double the sworn value of the property covered by the grant. If all beneficiaries are capable adults who consent, the judge may waive the bond or sureties. No surety is needed if the sworn value is $50,000 or less, and one surety is needed for values over $50,000 but under $100,000.

What applying for a grant involves

Where a grant is needed, letters probate may be granted under the court's seal after the will is proved, the deceased's place of abode at death is shown by affidavit, and the prescribed fees are paid.

For a will that is not handwritten, the evidence must show the will was validly signed and witnessed and that the person appeared to be of sound mind and of age. At least one witness's evidence is generally required, but if witnesses are dead, incompetent or cannot be found, the judge may accept other satisfactory evidence. For a holograph will, the evidence must instead establish the testator's handwriting and signature and the will's validity. A notarial will made in Quebec may be admitted to probate on filing a notarial copy.

Before a grant, the applicant must file a sworn inventory of all property the deceased owned at death. For a limited grant, the inventory need only list the property covered by the grant. Forms under Rule 74 have included the following, but the rules and forms are updated from time to time, so confirm the current versions before you use them:

• Form 74A, Request for Probate.
• Form 74B, Inventory and Valuation of the Property of the Deceased.
• Form 74D, Affidavit of Execution, and Form 74E, Affidavit of Condition.
• Form 74F, Grant of Probate, and Form 74EE, Information for Personal Representatives and Beneficiaries.

Court rules and forms are updated from time to time, so confirm that you are using the current versions before you file anything.

What to do next

• List every asset and write down how each one is held: sole name, joint, or with a named beneficiary.
• Find the original will, if there is one.
• Add up a rough total value to see whether the estate could fall within the $10,000 small estate rule.
• Ask each bank, insurer or registry what it needs before it releases an asset.
• Send general questions to the Probate Division at ProbateInquiry@gov.mb.ca.
• If the picture is unclear, speak with a lawyer before you file anything.

Frequently asked questions