Do You Need Probate When Someone Dies in Prince Edward Island?

When someone close to you dies, one of the first questions is whether the estate has to go through probate. People often hear that probate is always required, or that it can always be avoided. Neither is true in every case.

This article explains what probate is in Prince Edward Island, which court handles it, and which kinds of property sit outside the estate's probate value. It cannot say whether your family's estate needs a grant, because that depends on what the person owned.

This article covers the law of Prince Edward Island.

What probate means in Prince Edward Island

Probate is the court's recognition of an executor's authority to deal with the estate. In Prince Edward Island, you apply to the Estates Section of the Supreme Court by petition under Rule 65, which covers Estates of Deceased Persons.

The petition must state the date of death, the deceased's marital status, and the name, age and address of each child. If there is a will and the executor acts, the court issues Letters Probate (Form 65U). Where there is a will but no executor acts, Letters of Administration with the Will Annexed (Form 65W) issue instead. Letters of administration with the will annexed may also be granted if the named executors do not take out probate after an interested party gives thirty days' notice requiring them to.

Why it is not always a simple yes or no

Whether you need a grant usually turns on the property itself. How each asset was held can make a difference, and how that applies to a particular asset is worth confirming with a lawyer. Others pass by a different route, such as life insurance that names a beneficiary.

For fee purposes, the Probate Act defines probate value as the gross assets of the estate, not including life insurance money passing on death to a named beneficiary. In other words, that insurance money is not counted as part of the estate for probate.

Where a bank or other organization holds some of the person's property, what happens next depends on your situation and is worth confirming. Ask each one what it requires, and have a lawyer confirm whether a grant is needed for a smaller estate.

Which type of grant applies

On an intestacy, Form 65C requires you to list the next of kin and heirs at law and to state the grounds of your right to administer. The executor also swears an oath on Form 65D.

Special situations

• A named executor may decline the role by filing a renunciation (Form 65K).
• If the named executors do not take out probate after an interested party gives thirty days' notice requiring them to, letters of administration with the will annexed may be granted instead.
• On an intestacy where no letters have issued, a person interested must, before applying for a grant, cite those with a prior right to accept or refuse administration.
• Where there is no one entitled or willing to administer an estate, the Provincial Administrator of Estates Act governs the Provincial Administrator's role.
• Where the Probate Act and Rule 65 are silent, the general Rules of the Supreme Court apply to Estates Section proceedings.
• If the estate was already probated elsewhere, a foreign administrator's nomination uses Form 65YY.

Fees, taxes and clearance

Probate fees are scaled to probate value. The Probate Act schedule starts at $50 for a petition where probate value is up to $10,000 and $100 for $10,001 to $25,000, rising in bands above that. What applies to a larger estate is worth confirming with the Estates Section or a lawyer.

Court filing fees generally follow the Court Fees Act and its regulations, while costs on passing of accounts are fixed under the Probate Act schedule.

A deceased person's final T1 return is due April 30 of the following year if death occurred January 1 to October 31. If death occurred November 1 to December 31, it is due six months after the date of death, and any balance owing is payable by the same date unless noted otherwise.

There are exceptions. If the deceased or their spouse or common-law partner carried on a business, the final return is due June 15 for deaths January 1 to December 15, though the balance is still due April 30, or six months after death for deaths December 16 to 31. If the person died early in the year before filing the prior year's return, that return is due six months after the date of death.

The legal representative should determine whether a CRA clearance certificate is needed before distributing any property of the estate.

What to do next

• Find the original will, if there is one, and keep it safe.
• List everything the person owned and how each item was held or who is named as beneficiary.
• Note the date of death, since it affects the final tax return deadline.
• Order death certificates from the Vital Statistics Division. A certificate showing cause of death is restricted to certain relatives such as a spouse, child, parent or sibling.
• Ask each bank or institution what it needs before it releases anything.
• Speak with a lawyer before you distribute anything, so you know whether a grant is required.

Frequently asked questions