Apply for probate in Manitoba: Form 74A, the inventory in Form 74B, the 7-day minimum wait, the $10,000 small-estate order, and filing at the Court of King's Bench.
Applies in: Manitoba
Wait 7 days after the death, then file Form 74A with the original will at the Court of King's Bench. Probate in Manitoba is the court process that confirms a will is valid and that the executor named in it has the right to carry it out. The executor applies to the Court of King's Bench, and if the court is satisfied it issues a Grant of Probate. This guide covers process only. It is not legal advice, and it gives no advice about whether a particular estate needs a grant.
The procedure is governed by The Court of King's Bench Surrogate Practice Act, C.C.S.M. c. C290, by Rule 74 of the Court of King's Bench Rules, and by The Wills Act, C.C.S.M. c. W150. Grants of probate or administration may be made by the court at any judicial centre, and a grant from one judicial centre has effect throughout the province. Use the latest version of each form.
Not every estate needs probate. If all of the assets are jointly held, it is not necessary for the will to be probated. Only property that is in the deceased's name alone should be included in the inventory, unless there is a joint bank account that the deceased intended to be included in the estate. Do not include life insurance or RRSPs payable to named beneficiaries; only include these if they are payable to the estate.
If the estate assets are worth $10,000 or less, you can apply for an Order under Section 47 of The Court of King's Bench Surrogate Practice Act instead of a grant of probate. That order uses Form 74FF, Request for Order under Section 47, and two copies of Form 74GG, the Order itself. The form includes a declaration that the property of the deceased is not over $10,000 in value. Neither probate nor administration is issued under that order; the court orders the proceeds to be used to pay the reasonable funeral expenses and the debts of the deceased, and to pay any balance in accordance with the will, or, if there is no will, to the next of kin.
Find the deceased's signed original will, not a photocopy. It is likely among the deceased's personal papers or with the deceased's lawyer or trust company. Check whether there is a Form 74D Affidavit of Execution of Will or Codicil with the will. If it was not signed at the time the will was executed, you will have to contact one of the witnesses who witnessed the will and have the affidavit sworn by them before applying for probate.
If there are any marks on the will that were aimed at modifying its contents, such as extra words written in or things crossed out and not initialled by the testator and the two witnesses, you will need Form 74E, Affidavit of Condition. A holograph will, written totally in the testator's own handwriting and signed at the end, does not need a witness; to probate one, an affidavit in Form 4D must be prepared and sworn by a person familiar with the testator's handwriting and signature.
Consider who should serve as executor. There may be more than one person named as executor in the will. If one executor decides not to act, that executor must prepare and sign Form 74N, Renunciation, in the presence of a witness, and that witness must sign Form 74X, Affidavit of Execution of Renunciation, sworn before a Commissioner for Oaths or a Notary Public.
The court cannot grant probate until seven days after the death of the testator, unless a judge otherwise directs. A will may also contain a clause that extends the amount of time that the executor must outlive the testator before applying to probate the will.
Begin preparing Form 74B, Inventory and Valuation of the Property of the Deceased. Assess the value and nature of the assets and determine whether the will must be probated. The value of property for probate or administration purposes is the fair market value of the property minus any encumbrances, such as mortgages; show only the net value. Do not include jointly held real or personal property.
If you find out after you apply for probate that other assets exist that you did not list, you can file an amended valuation within 30 days of the discovery. Any right of action that the estate has should be valued at $1.00 and then amended later, if necessary.
The Request for Probate set includes:
In addition to these forms, bring the executed original will with its affidavit of execution, two photocopies of the executed original will (not including the affidavit of execution), and proof of death, usually either the Funeral Director's Death Certificate or a Death Certificate from Vital Statistics. The Commissioner or Notary must mark the will as an exhibit to the Request for Probate, and the executor must sign the will to identify it.
You do not need to make an appointment. Go to the Court of King's Bench office nearest where you live with the documents. Estate matters at the Court of King's Bench in Winnipeg, at 408 York Avenue, are dealt with in Room 100C. A clerk will take your forms, and they will be reviewed and dealt with by court staff and a Master or a judge.
If your documents are not in the proper form they may be rejected. In that case you will have to pay a $10.00 rejection fee.
There is no value-based probate charge to pay. The Law Fees and Probate Charge Act was amended as of November 6, 2020, the Act was renamed The Court Services Fees Act, and charges relating to applications for probate or administration were eliminated. Applications filed on or before November 5, 2020 are still subject to additional probate charges if additional assets are identified after the filing date or the value of existing assets increases.
Once you receive the Grant of Probate, you have the authority to deal with the estate assets held by various institutions. Some institutions may require a notarial copy, and also may require a death certificate.
Order court-certified copies of the grant when it issues. Banks and land registries commonly ask for a certified copy rather than a plain copy.
If there is no will, the process is called administration. An administrator can be appointed by the court if the deceased dies without leaving a will, in which case the administrator applies for administration by Form 74L, Request for Letters of Administration. If the deceased left a will but failed to appoint an executor, or the executor cannot or will not act, Form 74C, Request for Letters of Administration with Will Annexed, is filed instead.
An applicant for administration must be a resident of Manitoba. The right to apply to be administrator is based on kinship to the deceased, generally in the following successive order, subject to being of the age of majority and resident in Manitoba: spouse or common-law partner; children; grandchildren; and other issue. Where there is no will, the administrator distributes the estate in accordance with The Intestate Succession Act, C.C.S.M. c. I85. If a will exists, the administrator must follow the terms of the will in distributing the estate.
Getting the grant is not the last deadline. Under section 31 of The Family Property Act, the personal representative must serve a notice on the deceased's surviving spouse or common-law partner, in the form set out in the Estate Notice to Surviving Spouse or Common-Law Partner Regulation (M.R. 101/2004). The notice tells the survivor they may have rights to an accounting and equalization of assets. The survivor then has six months from the grant of probate or letters of administration to apply for that accounting and equalization, unless the court extends the time — and one of the reasons the court may extend it is that the personal representative did not serve the section 31 notice. Do not distribute the estate in a way that ignores this: serve the notice, diary the six months from the grant, and get legal advice before distributing if a claim is possible.
No separate notice-to-beneficiaries form or beneficiary-notice deadline is stated, because none was verified on an opened official page — the section 31 notice above is a notice to a surviving spouse or common-law partner, not a general notice to beneficiaries. No processing time from filing to grant is stated, because none was verified on an opened official page. No current filing or copy fee amount is stated, apart from the $10 rejection fee, because no current fee schedule was verified on an opened official page; the value-based probate charge itself was eliminated in 2020. No registry location outside Winnipeg is stated, because no other specific registry location was verified on an opened official page. The Law of Property Act, C.C.S.M. c. L90, was checked and no probate-specific provision from it is stated in this guide, because none was verified on an opened official page. Confirm the registry to file in, current timelines, and any copy fees with the Court of King's Bench registry before you plan around them.
Probate is the Court of King's Bench process that confirms a will is valid and that the executor named in it has the right to carry it out. If the court is satisfied, it issues a Grant of Probate, which is the court order that gives the executor legal authority to deal with the estate. The procedure is governed by The Court of King's Bench Surrogate Practice Act and by Rule 74 of the Court of King's Bench Rules, and wills themselves are governed by The Wills Act.
Not necessarily. If all of the assets are jointly held, it is not necessary for the will to be probated. Only property in the deceased's name alone should be included in the inventory, unless there is a joint bank account that the deceased intended to be included in the estate. Life insurance or RRSPs payable to named beneficiaries are not included, only those payable to the estate. If the estate assets are worth $10,000 or less, you can apply for an Order under Section 47 of The Court of King's Bench Surrogate Practice Act instead of a grant of probate. If you are not sure whether a grant is needed, consider getting legal advice before deciding.
The Request for Probate set includes Form 74A, Request for Probate; Form 74B, Inventory and Valuation of the Property of the Deceased; Form 74D, Affidavit of Execution of Will or Codicil; and Form 74F, Grant of Probate, of which you need two copies. If an executor is not able or willing to act and is renouncing, you also need Form 74N, Renunciation, and Form 74X, Affidavit of Execution of Renunciation. You must also bring the signed original will with its affidavit of execution, two photocopies of the executed original will, and proof of death, usually a Funeral Director's Death Certificate or a Death Certificate from Vital Statistics.
There is no value-based probate charge in Manitoba. The Law Fees and Probate Charge Act was amended as of November 6, 2020, the Act was renamed The Court Services Fees Act, and charges relating to applications for probate or administration were eliminated. Pre-printed forms are available at the court office, but there is a fee for them, and if your documents are not in the proper form they may be rejected, in which case you will have to pay a $10 rejection fee. Confirm any current filing or copy fees with the court registry before you file.
The court cannot grant probate until seven days after the death of the testator, unless a judge otherwise directs. A will may also contain a survivorship clause that extends the time the executor must outlive the testator before applying to probate the will. If you find out after you apply that other assets exist that you did not list, you can file an amended valuation within 30 days of the discovery.
Then the process is called administration, not probate. The administrator applies for Letters of Administration using Form 74L, Request for Letters of Administration, or Form 74C, Request for Letters of Administration with Will Annexed, where a will exists but no executor can act. An applicant for administration must be a resident of Manitoba. The right to apply is based on kinship to the deceased, generally starting with the spouse or common-law partner, then children, then grandchildren and other issue, and the estate is distributed under The Intestate Succession Act.