Probate

Probate is the court procedure seeking formal approval of the will by the Superior Court as the last valid will of the deceased.

A “Certificate of Appointment of Estate Trustee” is received once granted by the court. The process of applying for the Certificate of Appointment of Estate Trustee (also known as Probate) is to give the Executor formal authority to act on behalf of the deceased.

When?

Probate is not always required, however it is common that most estates should be probated.

Some examples of estates requiring probate:

-Executor wants to validate the will for their protection
-There is real estate held not automatically rolling to the spouse (minus first dealing exemption)
-Registered Investments without a named beneficiary
-Financial Institutions request it
-No will, need to appoint an Estate Trustee
-Disputes about who the Executor is, or beneficiaries are unable to consent on their own (people under disability, including minors)

How?

The probate process involves a lot of paper work! Besides the application forms, there are various additional forms that may need to be prepared depending on the estates particular situation.

An additional step of probate is the Estate Administration Tax (commonly known as probate tax). This must be calculated on the market value of the estate and payment must be included with the application in order to be processed.

The length of time all depends on which Court the application must be submitted to. Applications in the GTA usually have longer wait times than smaller communities, currently processing in the GTA is approximately 4-6 months. Unfortunately, if you do not like the processing times in your area, you cannot pick and choose which Court to submit your application to. The application must be filed in the Court where the deceased resided.

Once the certificate is received, the Executor must prepare and submit the Estate Information Return. This is NOT an income tax return, that must still be prepared. The Estate Information Return lists out in great detail the assets owned by the deceased which are subject to probate. This listing is based on the fair market value of the estate on date of death, and the only liability that can be used to reduce the value of the assets is any “encumbrances” secured against Ontario real estate.

Who?

Applying for probate can certainly be done by the Executor themselves. Bearing in mind, the paperwork can be quite complex and the process can certainly be confusing.

Many Estate Trustees seek assistance with probate and estate administration. An Executor is responsible for every task of the estate and liable for their actions, it is always highly recommended to seek professional guidance with probate and estate administration.

Our services are often used by Executors who require assistance without legal advice. Think of us as the Executor’s assistant, helping them every step of the way.

If an Executor has any legal concerns about any of the aspects about probate or estate administration, we strongly advise you to see a lawyer right away. If you do not know of a lawyer, we are happy to refer you to various firms that we work closely with.