I’m applying for probate. Who do I need to send a probate form P1 to? Do I need to send notice to myself?
I'm executor for a friend who passed away. She was divorced with no children. Her parents have passed away. Do I really have to send notice to her two surviving brothers? They were not in the will and hadn’t spoken to her in years. And do I need to give notice to myself?
There are certain people you have to tell that you’re going to apply for probate. You do this by completing and sending a notice of proposed application (form P1). If the deceased had a will, you must attach a copy of it to the form. (You can download form P1 here.)
The law says you must give notice to anyone who would have inherited if there had been no will. The law is asking you to consider a hypothetical situation: imagine the deceased didn’t have a will. Who would have inherited their estate?
You have a tricky task here. This exercise — figuring out who would have been entitled to a share of the estate if the deceased left no instructions — can get complicated. (Remember, this is hypothetical! It has no bearing on who actually inherits the estate. It’s an exercise to figure out who to give notice to.) Here is a walk-through:
Write down all of the relations the deceased had before they died. This includes a spouse and descendants. Descendants are children, grandchildren, and great-grandchildren. It’s like doing a family tree.
Apply the law to the facts. Where the deceased had no spouse and no descendants, the estate would go to their parents. In this case, your friend had no spouse or descendants. And their parents have passed away. So these people can be ruled out.
If the deceased’s parents aren’t alive, the estate would be divided equally among their parents’ descendants. Usually, this would be the deceased’s siblings. But it could include half-siblings, too. And it could include nieces and nephews (whose own parents have already died).
In short, on these facts, you should give notice to the deceased’s brothers. Even though they’re not named in the will. This is because your friend’s parents aren’t alive. Your friend’s brothers are (in the words of the law) her “parents’ descendants.”
Others whom you must notify that you intend to apply for probate include:
Anyone named in the will as an executor or alternate executor. You only have to notify those whose right to make an application (as executor) is at least equal to your right to do so.
Each beneficiary under the will.
The spouse and any children of the deceased.
Anyone who’s served a citation to you in relation to the deceased.
If the deceased was a Nisga'a citizen, the Nisga'a Lisims government.
If the deceased was a member of a treaty First Nation, the treaty First Nation.
To the Public Guardian and Trustee if any of the heirs or beneficiaries are mentally incapable or, in some situations, minors.
As the person making the probate application, you do not have to send a form P1 notice to yourself.