You have recently lost a family member or longtime friend who has named you as the Executor in their Will. We have all heard the term ‘Probate’, but the one question that I hear on a regular basis is “What is Probate?” which is usually followed by, “Will we need it?” and “Can you help?”.  Hopefully this will give you some clarity on this topic.

Let’s start with “What is Probate?”

Probate is the process by which the Court approves the Will submitted to them as a valid document or where the Court confirms who has the authority to administer the Estate for the beneficiaries or heirs-at-law when the deceased did not have a Will. In Ontario, the Court will issue a Certificate of Appointment of Estate Trustee confirming who has the authority to administer the deceased’s Estate. 

A Certificate of Appointment is confirmation that the Estate Trustee has the right to deal with the assets of the deceased.

The decision on whether you will need ‘Probate’ is determined by several factors, such as what assets the deceased had or the value of those assets.    

For example, the banks have the right to ask for a Certificate of Appointment before allowing an Estate Trustee to deal with the assets. This is set out in the Bank Act (Canada). The Trustee Act (Ontario) provides protection to the banks and other parties who rely on the issued Certificate of Appointment if that Certificate is later cancelled. Banks are becoming more hesitate to release funds to Estate Trustees without an issued Certificate of Appointment.

Also, if the deceased owned real property in Ontario, the government agency which handles the registration of all real estate transactions requires an Estate Trustee to obtain a Certificate of Appointment from the Court before they can deal with sale or transfer of the deceased’s real property owned in Ontario.   

There are exceptions to both examples listed above and these exceptions can be reviewed with one of our Estates lawyers.

When someone dies without a Will, in the Court’s eyes this means that the deceased has not appointed someone to act as their Estate Trustee. There is legislation in Ontario which outlines who can apply to the Court to be appointed and who should provide their Consent in these circumstances.  An application will need to be completed to give an individual the authority to deal with the deceased’s property.

The final reason an Estate Trustee may want or need the official appointment is to protect them from a family member who might not think the Will being administered is valid as the issuance of the Certificate of Appointment will start certain limitation periods for claims against the estate. This will also allow the Estate Trustee to continue a litigation matter or start a litigation matter on behalf of the Estate.

It should also be noted that if the Estate Trustee needs ‘Probate’ to deal with one asset, all assets of the Estate must be included.

The application process consists of preparing several documents, determining the value of all assets of the deceased and calculating the Estate Administration Tax.  The Application must also be signed and sworn in front of a Commission of Oath or Notary. If the true value of assets is not known at the time of the application, an Affidavit providing an estimate value must be completed and an undertaking to provide with the court with the actual date of death value of the assets within 6 months of filing your application with the court.

Each application can bring different scenario which could require different documents to be submitted and if they are not filed, the Court can reject the application requesting changes which will delay the issuance of the Certificate of Appointment.

In Ontario, you will also need to complete an ‘Estate Information Return’ to confirm details and values of all Estate assets and file it with the Ministry of Finance. This return must be filed within 180 days from the issuance of the Certificate of Appointment and should not be confused with an Income Tax Return.

It is always recommended to speak with an experienced Estate Administration team to help you navigate through the administration process, including to assist you in determining if you will need to complete the Probate process.

More information?  We’re here to help – [email protected] This WARDS LAWYERS PC publication is for general information only. It is not legal advice, nor is it intended to be. Specific or more information may be necessary before advice could be provided for your particular circumstances.

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