2. Check if the will is valid, if needed

We're married. What happens to my partner's property if they die?
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2. Check if the will is valid, if needed

A court may need to decide if your partner's will is valid. You might need the court to do this so that your partner's property can be dealt with as they said in their will. This is called getting "probate", "letters probate", or a "certificate of appointment of estate trustee with a will".

Some of the reasons you may need to probate your partner's will are:

  • if someone challenges the validity of the will
  • because banks and other organizations may need to know the will is valid before they deal with your partner's bank accounts and other property

The court looks at several things before deciding whether a will is valid or not. For example, it may decide a will isn’t valid if:

  • it didn't follow certain rules. In general, the rules say that a will must be signed by the person making it and by two witnesses.
  • the person who made it didn't understand what they were doing. For example, because they had severe dementia at the time they made the will.

The date of the will can also be very important. For example, the whole will may not be valid if it was made before you and your partner got married. Or, parts of the will may not be valid if you and your partner got divorced after they made the will.

Not every will needs to be probated. For example, if the person doesn't have much property or if all of their property can be dealt with without getting probate.

Property that is jointly held can usually be dealt with without getting probate. An insurance policy is also usually paid to the person listed as the "beneficiary" without needing probate.

A common reason not to ask the court for probate is to avoid the tax that the government charges. The amount of the tax depends on the value of the property.

You can talk to a lawyer who can explain if you need to apply for probate.

If you can't afford to hire a lawyer for your whole case, some lawyers provide "unbundled services" or "limited scope retainer" services. This means you pay them to help you with part of your case.

If you can't afford to hire a lawyer, you may be able to find legal help in other places.

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Ministry of the Attorney General
Reviewed: July 31, 2017

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