How to Apply for Probate in Prince Edward Island Step by Step

Being named executor often arrives at the worst time. You are grieving, and you are also expected to deal with a court process you may never have seen. The good news is that the process in Prince Edward Island follows set steps and set forms, which makes it easier to understand once it is laid out.

This article walks through where the application goes, what the petition has to say, which forms are involved, how fees are measured, and what to deal with around the application, such as the final tax return. Every estate is different, so use this as a map and not as a substitute for advice on your own situation.

This article covers the law of Prince Edward Island.

Where the application is filed

An application for probate or for letters of administration is made to the Supreme Court's Estates Section. It is made by petition under Rule 65, which is the rule on Estates of Deceased Persons.

Rule 65 does not cover every question that can come up. Where the Probate Act and Rule 65 are silent, the general Rules of the Supreme Court apply to Estates Section proceedings.

The grant issued to an executor is Letters Probate. Whether a particular bank or other institution asks to see it before dealing with estate assets depends on that institution, so it is worth confirming with them directly.

The petition and the forms you will meet

Rule 65.11 says the petition must state the date of death, the deceased's marital status, and the name, age and address of each child. Gather that information before you sit down with the forms.

The prescribed petition forms are Form 65A, Form 65B and Form 65C, and the executor swears an oath on Form 65D.

If there is no will, Form 65C requires the petitioner to list the next of kin and heirs at law and to state the grounds of the applicant's right to administer.

When the usual path changes

Not every estate follows the straight line of a will, a named executor and a Letters Probate. Several situations change the steps.

• An executor who does not want the job can decline by filing a renunciation of probate or of administration on Form 65K.
• If the named executors do not take out probate after an interested party gives thirty days' notice requiring them to do so, letters of administration with the will annexed may be granted instead, under the Probate Act.
• On an intestacy where no letters have issued, a person who is interested must, before applying for a grant, cite those with a prior right to accept or refuse administration (Rule 65.24).
• Where there is no one entitled or willing to administer an estate, the Provincial Administrator of Estates Act governs the Provincial Administrator's role.
• For an estate already probated elsewhere, an ancillary grant issues under Rule 65 on application and payment of the prescribed fees, and a foreign administrator's nomination uses Form 65YY.

If more than one of these applies, or if family members disagree about who should act, that is a good point to speak with a lawyer before filing anything.

How probate fees are measured

Probate fees are scaled to the probate value of the estate. Under the Probate Act, probate value means the gross assets of the estate, not including life insurance money passing on death to a named beneficiary.

That means life insurance paid to a named beneficiary does not increase the probate fee. The schedule starts at $50 for a petition where probate value is up to $10,000 and $100 for $10,001 to $25,000, and it rises in bands above that.

For larger estates, the exact fee depends on the current schedule, so confirm it with the Estates Section or a lawyer before you budget. Court filing fees generally follow the Court Fees Act and its regulations, while costs on a passing of accounts are fixed under the Probate Act schedule.

What to do next

Some tasks sit alongside the application, and a few have firm dates. Start with these.

• 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.
• Locate the original will and note whether you are named as executor.
• Prepare the facts the petition needs: date of death, marital status, and the name, age and address of each child.
• Note the tax dates. The final T1 return is due April 30 of the following year for a death from January 1 to October 31, or six months after the date of death for a death from November 1 to December 31.
• Check the business exception. If the deceased or their spouse or common-law partner carried on a business, the final return is due June 15 for deaths from January 1 to December 15, though any balance is still due April 30.
• Check whether the prior year's return is outstanding. If the person died early in the year before filing it, that return is due six months after the date of death.
• Before distributing any property, determine whether a CRA clearance certificate is needed.

Can you do it yourself? The petition is a set of prescribed forms, so some executors with a simple estate choose to prepare them on their own. Whether that is sensible depends on the assets, the family and any disputes, and a lawyer can confirm what applies to you.

Frequently asked questions