Written by: Dina Nikseresht
When a loved one passes away, their assets need to be transferred according to their will or, if there is no will, in accordance with Ontario’s intestacy laws. This process is often referred to as estate administration. One of the most misunderstood steps in that process is probate.
What is Probate?
Probate is a legal process through which Ontario courts formally approve and validate a deceased person’s will and authorize the named executor/trustee to administer the estate. Where the deceased dies without a will, typically a close relative typically applies to the court to be appointed as the estate trustee.
Upon a successful application, the court issues a Certificate of Appointment of Estate Trustee which gives the executor/trustee legal authority to access accounts, sell property, pay debts, and distribute the assets.
When is Probate Required?
Not every estate requires probate, but in most cases where the deceased dies with assets, probate will be required. The need for probate is largely based on third parties need to demonstrate legal assurance that the executor/trustee is authorized to act in that capacity. For example, financial institutions will always require a probate certificate in order to release funds in the deceased account or close the accounts, unless there is a nominal value in the account. If there is real estate which the deceased does not own jointly with another individual, probate will be required in order for the property to be transferred or sold.
However, beyond satisfying third party requirements, obtaining a probate certificate provides the executor/trustee protection from claims challenging the validity of the will, where one exists, or claims disputing the executor/trustee’s entitlement to act on the estate.
Estate Administration Tax
Along with the probate applications, the court requires the payment of estate administration tax on the entire estate being probated:
- $0 per $1,000 for the first $50,000 of the estate.
- $15 per $1000 for the remainder of the estate.
The tax must be paid directly to the Ministry of Finance at the time of filing the probate application.
How Long Does Probate Take?
The timeline for obtaining a probate certificate varies depending on the courthouse and the backlog in that region. Processing can take from several weeks to a number of months.
Working with an estate lawyer can help ensure the application is completed correctly and processed as efficiently as possible. An estate lawyer can simplify the executor/trustee’s responsibilities and guide them through what can often be a complex and time-consuming process.
