Probate
‘Probate’ is the term used to describe the court procedure that gives a person the authority to act on behalf of a deceased person and administer his or her estate. If the deceased had a will, probate is the formal process by which the court assesses whether the will is in fact the valid last will of the deceased. Whether the deceased had a will or not, probate also involves appointing the person who will be responsible for administering the deceased’s estate. This person is called the ‘estate trustee’. If the court confirms that the will is valid and the proposed person is found to have the right to administer the deceased’s estate, the court will issue a ‘Certificate of Appointment of Estate Trustee with a Will ‘or a ‘Certificate of Appointment of Estate Trustee Without a Will’. The estate trustee now has the certificate to prove to the beneficiaries and third parties that they have the legal authority to make decisions and distributions with respect to the deceased’s estate.
Common circumstances when probate is required are: if there are issues with respect to the validity of the will; if there is a dispute as to who are the executor(s) or beneficiaries; if the executor chooses probate; if a financial institution chooses probate; and if there is real property to sell. Often probate is not required in circumstances where one spouse dies and all of his/her assets pass to the surviving spouse; if the estate’s debts are greater than its assets; or if the estate is very modest, with only a small amount of money in a bank account. Since there are very specific rules and thresholds with respect to probate, you should seek legal advice if you have any questions or concerns about whether an estate will require probate.
Since January 8, 2021, the Ontario Superior Court of Justice expanded the options available for persons applying for a Certificate of Appointment of Estate Trustee with a Will or Certificate of Appointment of Estate Trustee Without a Will. Now there are options to apply for the certificate of appointment and serve notice by email, courier, or personal service. Please contact your local courthouse or seek legal advice to ascertain the proper procedures associated with probate.
‘Estate administration tax’, commonly referred to as ‘probate fees’, is paid to the Ontario government and is calculated based on the total value of the deceased’s estate at the time of death. The Ontario government provides a helpful estate administration tax calculator to estimate the amount of probate fees payable: https://www.ontario.ca/page/estate-administration-tax.
As probate requires very specific steps and rules, it can be an onerous task to undertake alone while grieving the loss of a loved one, but there are reliable online resources and experienced lawyers to help. When preparing an estate plan, it is important to have an up-to-date understanding of the Ontario probate process. I can help. I offer a free 20-minute phone consultation where you can inform me of your wishes and concerns, ask questions, and determine next steps. I look forward to hearing from you!
