If you have ever dealt with a death in your family, you may have heard the term “probate”. This article will go over the probate process, and the steps in applying for probate.
Probate is the legal process where a court will:
- Validate a deceased person’s will;and
- Approve the appointment of an “estate trustee”.
The estate trustee, commonly referred to as “executor”, is the person with authority to manage the deceased’s estate. In Ontario, “getting probate” means applying for a Certificate of Appointment of Estate Trustee (“Certificate”).
The Certificate allows the estate trustee to:
- Access the deceased person’s assets, including bank accounts and investments;
- Access the deceased’s physical assets like safety deposit boxes, vehicles, personal items;
- Pay for the debts, taxes, and other obligations of the deceased;
- Sell or transfer the deceased’s property including real estate; and
- Distribute assets to the beneficiaries.
Without the Certificate, banks and government agencies like Canada Revenue Agency and Service Canada may refuse to provide information about the deceased person’s assets. These companies may also not allow access to the deceased person’s accounts and refuse releasing money to beneficiaries.
Probate is usually required when:
- When the deceased person died without a Will.
- There is a dispute on whether the deceased’s Will is valid, or if it is their last Will.
- The deceased person owned real estate in their name alone. Real estate might be transferred without probate, under a “first dealings exemption”. The requirements for a first dealings exemption are strict. If you are not sure if this exemption applies, you should consult a lawyer.
- The estate includes large bank or investment accounts, and the banks refuse to release funds without the Certificate of Appointment of Estate Trustee.
- There are ongoing disputes among beneficiaries.
If you’re not sure whether probate is necessary, book a consultation with one of our Estates lawyers.
The Probate Process in Ontario
The main steps for probate are:
- Gathering documents – This includes the original will, death certificate, and an inventory of the person’s assets at the time of death.
- Preparing the application – the person applying to be the estate trustee must sign the application and swear that the information provided about the deceased, the beneficiaries, and assets of the estate are correct.
- Notifying beneficiaries – All beneficiaries or legal heirs must receive proper notice of the application.
- Filing with the court – The application and supporting documents, including the Will and death certificate, must be submitted Ontario Superior Court of Justice.
- Paying estate administration tax – This tax is based on the estate’s value.
After the court reviews the application, the Certificate of Appointment is issued.
How an Estates Lawyer Can Help
Handling probate on your own can be confusing and stressful. Mistakes can lead to delays or additional costs. A member of Boardwalk Law’s Estates Law team can:
- Confirm if probate is required,
- Prepare and file the application and court forms,
- Communicate with the estates court staff,
- Communicate with the beneficiaries, and
- Guide the estate trustee in managing and distributing assets.
Hiring an estates lawyer gives peace of mind that the estate is handled according to the law.
Please contact Gordon Vuong, Associate Lawyer at [email protected] / 905.798.6731 to book a consultation today.
