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My mother died. Her bank says I need probate before I can access her accounts. What is probate and why does the bank think I need it?

The primary purpose of probate is to validate the will and to confirm the authority of the estate trustee to act on behalf of the estate.  Institutions which hold a deceased person’s assets have a legal duty to safeguard them and to only transfer them to the person who is legally authorized to receive them on behalf of the estate.  When an institution releases assets without probate it leaves itself open to a significant risk of liability. 

This happened in the Monteiro v. Toronto Dominion Bank.  In that case TD released a bank account to deceased’s son shortly after her death even though it knew that the deceased’s daughter was claiming under a Will submitted in the courts of Kuwait to be the sole beneficiary of their mother’s estate.  Eventually the Kuwaiti courts agreed that the daughter held her mother’s valid last will.  The daughter then sued TD for the funds it had released to her brother.  The Ontario Court of Appeal had no sympathy for the bank and ordered it to pay out again to the daughter.    
 
David van der Woerd
David van der Woerd
P: 905.572.5803
dvanderwoerd@rossmcbride.com