Probate is something nobody wants to think about until the time comes when they have to. Whether you’re trying to understand how it works in advance for a smoother experience or you’re in the midst of the process already, let’s start by breaking everything down. There are some differences between different provinces and countries, but we’ll be focusing on the specifics of probate in Ontario.
In this article, we’ll run through what probate is, what to expect from the process in Ontario, and how to make your application.
What is probate?
After someone passes away, they usually leave behind a range of assets, such as investments and real estate. Most people are aware that a will is needed to distribute these assets as the deceased wished, but they may not realize that probate is also a vital piece of the puzzle.
Essentially, probate is the process that assigns someone the role of Estate Trustee, meaning they have the legal authority to oversee how an estate (aka the assets) will be distributed.
This can work differently depending on the state of affairs the deceased left behind.
How does probate work in Ontario?
In Ontario, only Estate Trustees have the right to manage an estate, so probate is essential (except for someone who only leaves behind certain types of assets, as we’ll explain shortly).
In some cases, the will of the deceased specifies an Estate Trustee, which makes everything easier. The court simply has to confirm that the will is valid and the most recent version, then give the named Trustee the authority of the position.
When this happens, the Ontario Superior Court of Justice issues a Certificate of Appointment of Estate Trustee. Alternatively, they may issue a Small Estate Certificate if the total value of the assets is less than $150,000.
Otherwise, the Ontario Succession Law Reform applies, which governs who has the most legal right to the assets.
Which assets require probate?
So far, we’ve made it sound as though applying for probate is always a requirement. However, it’s not necessary in some cases — this comes down to the types of assets in question.
Probate is almost always a requirement for real estate and assets held in an account with a financial institution. However, jointly owned assets with a right to survivorship (JTWROS) and First Dealings (‘grandfathered’) real estate are exempt. Other assets that often don’t require probate include:
- Gifts made inter vivos
- Assets put into a trust
- Insurance proceeds
- RRSPs, RRIFs, and TFSAs
Probate fees and taxes
In Ontario, you need to pay an Estate Administration Tax when you submit your application for probate. This tax is worth 1.5% of the estate’s value.
You’ll also need to file taxes on behalf of the deceased.
How to apply for probate
To apply for a Certificate of Appointment of Estate Trustee, you’ll need to collect the relevant documents and submit them to the Court. These are:
- The original will (if there is one) plus any later additions
- Proof of death (death certificate or court order)
- Official information about assets and their beneficiaries
After completing the court forms, you can file the application with the Superior Court of Justice at a court located in the district or county of the deceased.
The timeline on your receiving a Certificate can vary greatly depending on the quality of the applications and requirements of the particular Court.
If someone has already been named the Estate Trustee in a will, they should be the one to apply. Before you start, it’s best to check whether anyone else already has a certificate or has begun an application — if this is the case, your application could be rejected regardless of its merits.
To boost your chances of a successful application, it’s best to work with a legal professional or law firm, as they understand the ins and outs of the process. This is especially true for more complex cases.
What to do if you’re rejected for probate
Unfortunately, sometimes probate applications do get rejected. However, the good news is that you’ll have the option to submit revised or additional materials in the hopes of the court changing their decision.
If you attempted to make the application alone previously, it’s definitely worth getting a professional on board at this point in case you filled in any of the documents incorrectly.
Get the ball rolling
Applying for probate can be a complicated and stressful process, but as long as you’re informed and prepared, there’s no reason that everything shouldn’t run smoothly. To increase your chances of this being the case, it’s always best to work with professionals.
At Jeffrey Murray Law, we can help you secure probate as easily as possible through tailored guidance and expertise in the field. To find out more, contact us today.
DISCLAIMER: This website is for general information purposes only. Readers are cautioned to obtain legal advice as early as possible directly from a lawyer regarding the particular circumstances of their own situation. Do not rely on the information you find here as constituting legal advice as it is not possible to provide complete answers to any given question without a retainer that includes a detailed review of your situation.
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