What is probate in Ontario?

Understanding the probate process is a key concern for many individuals dealing with an estate in Ontario. Probate refers to the court procedure where a will is proven valid and the executor is formally appointed to administer the deceased person's estate. Although it might seem daunting, having a clear grasp of probate helps in navigating the complexities of estate administration.

What is probate in Ontario?

Probate in Ontario is a legal process that validates a will and confirms the authority of an executor. The executor, also known as an estate trustee, is responsible for administering the deceased’s estate in accordance with their last testament.

The process involves submitting a detailed application to the Ontario Superior Court of Justice, which, upon approval, results in the issuance of a Certificate of Appointment of Estate Trustee. This certificate is often required by financial institutions and is necessary for dealing with certain assets of the estate.

Probate also serves to protect the executor against claims and challenges concerning the validity of the will or the distribution of the estate assets.

When is probate required in Ontario?

Probate is not always mandatory in Ontario, but it is generally required when the deceased owned assets that need to be transferred or sold. Financial institutions may request probate to release assets held by the deceased, such as bank accounts or investments.

Additionally, probate may be necessary if there are complexities in the will, disputes among beneficiaries, or if real estate is owned in the deceased's sole name. Without probate, these assets cannot be lawfully transferred to the beneficiaries.

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How do I probate a will in Ontario?

The process to probate a will in Ontario involves several steps. Firstly, the executor must locate the original will and death certificate. They must then complete an application for a Certificate of Appointment of Estate Trustee.

The application includes several forms that must be filled out accurately and submitted to the court along with the prescribed fee. It is crucial for the executor to notify all beneficiaries and ascertain the value of the deceased’s assets as this will determine the probate fee.

How much does probate cost in Ontario?

Probate costs in Ontario are calculated based on the estate’s total value. There is a probate fee (also known as the estate administration tax) that is $5 for every $1,000 on the first $50,000 of the estate's value, and $15 for every $1,000 thereafter.

There are additional costs associated with hiring a lawyer, appraising assets, and other administrative expenses that may arise during the process.

How long does probate take in Ontario?

The duration of the probate process in Ontario varies. It can range from a few months to over a year, depending on the complexity of the estate and court backlogs. Delays are often longer in high-volume jurisdictions like Toronto.

Once the application is submitted, the initial Certificate of Appointment can take several weeks to be issued. Administering the entire estate can take additional time as it involves collecting assets, paying debts, and distributing inheritances.

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Do I need a lawyer to probate a will in Ontario?

While it is not mandatory to hire a lawyer to probate a will in Ontario, legal guidance can be invaluable. The probate process involves intricate legal documents and strict deadlines.

A lawyer can help ensure that the application is completed correctly and efficiently, which can be especially helpful if the estate is complex or if there are disputes among beneficiaries.

What assets do not require probate in Ontario?

Not all assets require probate in Ontario. Some assets pass outside of the will directly to beneficiaries, such as:

• Jointly held property with rights of survivorship
• Insurance policies with a designated beneficiary
• Registered retirement savings plans (RRSPs) and registered retirement income funds (RRIFs) with named beneficiaries

It's important to consult with an estate planning professional to understand how these assets are handled upon death.

How do I handle the sale of real estate in probate?

Selling real estate during probate involves several steps. The executor must first obtain the Certificate of Appointment. After which, they can list the property for sale.

The executor must ensure that the sale price is in line with the market value to fulfill their duty of obtaining the best possible outcome for the beneficiaries. The proceeds from the sale then become part of the estate to be distributed according to the will.

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