Manitoba

In Manitoba the executor applies to the Probate Division of the Court of King's Bench for a
Grant of Probate, or — where there is no will or the named executor will not act — a Grant of
Administration. The grant is what proves the executor's authority to banks, the land titles office
and investment firms.

Manitoba abolished probate fees

This is the thing to know. Since 6 November 2020 Manitoba charges no probate fee on the value
of the estate. A modest court filing fee under the Court Services Fees Regulation still applies,
but the percentage levy that other provinces charge is simply gone. Planning that other provinces do
purely to shrink the probate-fee bill — multiple wills, transfers into joint names — has much less
point in Manitoba, and joint ownership carries its own risks.

The statutes

The Wills Act governs the validity of the will. The Court of King's Bench Surrogate Practice Act
governs the grant and the administration.

What gets filed

• The original will, with an affidavit of execution.
• Proof of death.
• An inventory of assets and liabilities valued at the date of death.
• The application forms, plus notice to beneficiaries and anyone entitled on an intestacy.

What still passes outside the estate

Property held jointly with right of survivorship, and registered plans or insurance with a named
living beneficiary, pass outside the estate and do not need the grant.

Before distributing

Collect the assets, pay the debts and taxes, and obtain the Canada Revenue Agency clearance
certificate. Distributing first leaves the executor personally exposed for unpaid tax.

Under The Wills Act, a Manitoba will must be in writing, signed by the testator, and
signed by two witnesses who are present together when the testator signs. A holograph will —
written wholly in the testator's own handwriting and signed by them — is valid with no witnesses.

Holograph wills are valid; treat them as a stopgap

Manitoba admits them. It does not fix them. The gaps a holograph will leaves — no residue clause, no
alternate executor, no clear disposal of a specific asset that was sold years ago — are exactly the
gaps that produce applications to the court.

Witnesses must not benefit

A gift to a witness, or to a witness's spouse or common-law partner, fails while the rest of the will
survives. Use two neutral witnesses with nothing to gain.

Age and capacity

The general rule is 18 or older, with exceptions for those who are married or on active service.
Capacity is judged at the moment of signing.

Common-law partners and separation

Manitoba treats registered common-law partners substantially as spouses for succession purposes,
and the end of a marriage or a registered partnership changes how a will operates. If your
relationship status has changed — either direction — have the will reviewed rather than assuming.

Also worth doing

• Name an alternate executor. People predecease, decline, and become unable to act.
• Review after a marriage, a registered or unregistered separation, a divorce, a birth, or a move to
  another province.
• Say where the original is kept and tell the executor. A copy will not get a grant.

Without a will, The Intestate Succession Act decides who inherits, and the court appoints the
administrator.

Yes. A Manitoba executor may be paid for administering the estate, and it is entirely ordinary
that they are.

The standard

Manitoba does not set a fixed percentage by statute. The executor is entitled to a fair and
reasonable allowance for their care, pains and trouble, and for the time expended. What is fair
turns on the value of the estate, the time spent, the responsibility assumed, the skill required, the
complexity, and the results achieved. Practitioners often start from a percentage of the estate,
tapering as value rises, but that is convention rather than entitlement.

How it gets approved

Either all the beneficiaries consent in writing, or the Court of King's Bench approves it when
the executor passes their accounts. Settle it in writing before taking anything. An executor who pays
themselves first and raises it afterwards should expect the question to be asked properly.

Where consent is not available

If a beneficiary is a minor or cannot manage their affairs, consent cannot be given and the executor
should expect to pass accounts, with the Public Guardian and Trustee entitled to be heard.

If the will fixes a figure

The will governs, provided the executor takes the appointment on those terms. A legacy to the
executor may be meant instead of a fee — read the clause carefully before assuming you can have both.

Tax

Compensation is taxable income to the executor; an inheritance is not. Where the executor is also
a beneficiary, taking a larger share of the estate rather than a fee is frequently better after tax.
Worth an accountant's view before you decide.

A Manitoba executor is reimbursed out of the estate for the reasonable out-of-pocket costs of
administering it. That is separate from, and on top of, any allowance for the executor's time.

Normally claimable

• Funeral, burial or cremation, and a reception in proportion to the estate.
• Court filing fees and certified death certificates. There is no probate fee in Manitoba to
  claim — it was abolished in 2020.
• Legal fees for the grant application, and accounting fees for the final T1 and any T3 return.
• Land titles searches, transfers and registrations.
• Appraisals of real property, farmland, vehicles, jewellery and collections.
• Carrying costs on estate property until it sells: insurance, property tax, utilities, security,
  maintenance, lawn care and snow clearing.
• Cleaning, clearing, storing, moving and shipping the contents of a residence.
• Travel on estate business at a reasonable rate — mileage, flights, parking.
• Postage, couriers, bank charges and bond premiums where a bond is required.

Normally not claimable

• The executor's lost wages, meals near home, or personal spending. Compensation covers that.
• Costs run up for one beneficiary's convenience rather than for the estate.
• Improvements to a property beyond what is needed to sell it as it stands.
• Anything the executor cannot document.

The rule that decides it

Open an estate bank account as soon as the grant issues, run every payment through it, and keep a
dated log of time and mileage from the beginning. The executor must account to the beneficiaries and,
if accounts are passed, to the Court of King's Bench. Receipts and a contemporaneous log are the
whole of the defence.

Most Manitoba estates are administered by a family member, and for most that is right. A trust
company or a lawyer acting as executor earns its keep in particular situations.

Consider a professional when

• The estate holds a working farm, an operating business, or rental property that has to keep
  going while the estate is settled.
• There is conflict among the beneficiaries, or a will challenge looks likely.
• A beneficiary is a minor or an adult who cannot manage money, which means a trust running for
  years and involvement of the Public Guardian and Trustee.
• The named executor lives outside Manitoba or outside Canada. A non-resident executor may be
  required to post a bond, and a non-resident trustee carries genuine tax consequences.
• Assets sit in more than one province or country — and note that a Manitoba estate that escapes
  probate fees at home may still meet them on assets in another province.
• The obvious candidate is grieving, elderly, unwell, or does not want the job.

What it costs

Trust companies charge a negotiated percentage, often with a minimum fee that makes small estates
uneconomic. Get the fee schedule in writing before appointing one.

Middle options

• Appoint a family member and let them retain a lawyer and an accountant, paid by the estate.
  This is the most common arrangement by a wide margin.
• Appoint a family member jointly with a trust company.
• Name a professional as the alternate, in case the family executor cannot act.

An executor who does not want the role can renounce before intermeddling in the estate. Once they
have begun to act, they are committed.