ANCILLARY PROBATE ON PRINCE EDWARD ISLAND
Do you have a loved one from “away” who has died and left property on Prince Edward Island to a beneficiary in their Will? You might have to apply for Ancillary Probate in Prince Edward Island.
In instances like this a testator’s Will is typically probated in his or her domicile – meaning the place where he or she maintained a residence with an intention of permanency. Once this happens the executors or trustees appointed by the Will are usually empowered to distribute the assets of the testator’s estate as directed by the Will. However, where part of the testator’s estate is made up of real property (and personal property in some instances) in another province or country, the Will will have to go through a process called Ancillary Probate in order for the executors or trustees to have the authority to deal with it.
Ancillary Probate is an additional probate that the Will goes through in order for the Court of the situs to grant the executors or trustees the authority to deal with the real property located in that jurisdiction. Ancillary Probate is necessary because while a testator’s Will and all of his or her estate’s assets within the jurisdiction of his or her domicile are subject to the law of that same jurisdiction, real property is governed by the law of the situs – law of the “site” on which the property is located. As such, a Court of that particular jurisdiction is the only Court with the power to grant authority to any executor or trustee.
In Prince Edward Island, application for Ancillary Probate must contain the following:
- Proof of the foreign grant of Probate, including a copy of the Will;
- Petition for Ancillary Probate, substantially in the form of a typical Petition for Probate for a testator domiciled on P.E.I.;
- An inventory of all the property of the estate – indicating which property is located in P.E.I. and which property is located outside of P.E.I.;
- A statement of the names, ages and relationships to the deceased of the beneficiaries of the property passing on the death of the deceased; and
- The Petitioner’s oath of office.
While the PEI Rules of Civil Procedure state that you will also require a bond for twice the value of the property located in the province that is guaranteed by a person with assets on P.E.I. or a guarantee company (unless otherwise directed), this is typically only required for an Ancillary Administration of an Estate and not for Ancillary Probate on P.E.I.
It should also be noted that where there is real estate in P.E.I., it must be proven that the Will has been executed by the testator in way that complies with P.E.I. laws in relation to passing real estate.
If you are, or ever find yourself, handling the affairs of a deceased loved one’s estate, please contact one of Key Murray Law’s Wills & Estates lawyers to arrange a consultation.
Jared Kelly
Articled Clerk
902-368-7807
jared.kelly@keymurraylaw.com
