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Updates to wills and applying for probate
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There have been some important changes related to wills and applying for probate.
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Getting married no longer cancels a will
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Before January 1, 2022, when someone got married, their will was automatically revoked. This meant that the will stopped being valid. It was as if the will was never made. |
Since January 1, 2022, when a person gets married, their will is not affected and continues to be valid. But to make their new spouse a beneficiary, the person must update their will or make a new one.
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Separation is now treated the same as a divorce
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Before January 1, 2022, separating from a spouse did not automatically change a will. This meant that if a person left property to a separated spouse in their will, that spouse would still get the property. To change this, the person had to update their will or make a new one.
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Since January 1, 2022, when someone separates, their will is treated as if they got a divorce. This means that, like a divorce, a separation cancels any gifts made to the ex-spouse in the will.
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What it means to be separated
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In estates law, being separated or “living separate” is now defined as spouses who:
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- are living separate and apart for 3 or more years, or
- have resolved their family law issues through a separation agreement, court order, or arbitration, and are still separated when one of them dies.
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How to make or update a will
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If a person wants to add their new spouse as a beneficiary or make any other changes to their will, they can:
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A codicil is a separate legal document that's made the same way as a will. It's usually used when there are small changes to the will, for example, adding or removing a beneficiary or changing an estate trustee.
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Getting help with a will
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There are also services, such as Axess Law, that offer legal services at lower rates. |
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Applying for probate
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Probate is a process that asks the court to confirm that a will is valid and that the estate trustee has the right to deal with the estate. If the court agrees, it issues a certificate.
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There are new forms to use when applying for probate. The forms are the same whether:
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- there's a will that names an estate trustee, or
- there's no will.
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How to apply for probate now depends on the value of the estate. If the value of the estate is:
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Simplified small estate court process
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- Form 74.1A Application for a Small Estate Certificate
- Form 74.1B Request to File an Application
- Affidavits as required, for example, the Form 74D Affidavit of Execution or Form 74E Affidavit of Condition
- Form 74.1C Small Estate Certificate
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Applications are usually processed more quickly than in the regular court process.
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Regular court process
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Filing probate applications
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Paying the estate administration tax
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Applying for probate also involves paying an estate administration tax, often called probate fees. |
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Related resources
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