What Probate Means in Ontario

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    Probate in Ontario refers to a court procedure dealing with a will.

    When someone dies, various belongings, real estate, assets, and liabilities are left behind. This is what is known as an estate.

    Drafting a will is important because it ensures that when someone dies, their final wishes on how their estate should be divided are respected.

    Probate refers to the court process that validates the will of the deceased and appoints a person to be the executor of the estate. An executor acts on behalf of the deceased to ensure the will is administrated properly and carried out according to the deceased’s wishes.

    Why Does An Estate Have To Be Probated?

    Probate is not required for all estates but most should be probated. By law, probate is required when a will needs to be validated or an executor needs to be appointed. It is also necessary when the choice of the is executor is in dispute or if there are beneficiaries who are unable to consent, such as minors or individuals living with certain disabilities. Additional situations when an estate should apply for probate include:

    • The deceased did not have a will.
    • The will does not name an estate trustee.
    • A financial institution requires probate to release assets to the estate trustee.
    • There is a property that needs to be sold.

    What Assets Are Subject To Probate in Ontario?

    Because you will find a cost of assets that are subject to probate in Ontario non-exhaustive, assets include but are not limited to, the following:

    • Any real estate located in Ontario.
    • Any real estate or property of the deceased that was held in another person’s name.
    • Bank accounts, including that registered out-of-province and in foreign countries.
    • Investments.
    • Vehicles.

    Other assets that may be subject to probate include any goods, intangible property, business interests, and/or insurance.

    There are also assets are not subject to probate in Ontario. They can be transferred to a designated beneficiary or spouse without requiring probate and include, but are not limited to:

    • Any real estate outside of Ontario.
    • Assets that were held jointly with exceptions.
    • CPP death benefits.
    • RPPs, RRSPs, RRIFs, and TFSAs that have a beneficiary designation.
    • Debts of the deceased, including credit cards, car loans, and unsecured lines of credit.

    How Do You Probate A Will in Ontario?

    Probating a will in Ontario requires an application to the Ontario Superior Court of Justice. A probate application can take two forms:

    • Small Estate Certificate. This is granted if the estate has a value of more than $150,000.
    • Certificate of Appointment of Estate Trustee. This applies if the estate is more than $150,000.

    Before applying for probate, verify there is not already a court application or a certificate hasn’t already been issued. If there is already an application or certificate, the courts will automatically reject your application.

    The estate trustee is typically responsible for submitting a probate application. Required documents include the deceased’s original will, death certificate, any additions or supplements to the original will and any applicable court documents. The number of forms needed depends on the situation of the will and probate. At this stage, a real estate lawyer in Toronto would be able to ensure the correct information is being provided. Court staff are not there to provide legal advice or to help complete the necessary forms. A lawyer can guide you through this process.

    Do You Need Probate For A Small Estate?

    Small estates may need probate. In some cases, a bank or financial institution may require probate to release funds to the estate. A bank is under no obligation to waive this requirement although some may for small estates when there is no conflict between the beneficiaries. It is a financial institution’s right to insist on probate.

    Is Probate Mandatory in Ontario?

    Probate is not mandatory in Ontario and you do not always have to file probate when someone dies. However, probate can help clarify many points and can certainly be sought.

    In fact, there are several situations where probate is not required:

    • An estate of ‘the first spouse to die’.
    • A small estate that does not involve any real estate.
    • A small estate that does not involve significant financial assets.

    It should be noted that if there is real estate or significant financial assets in the estate and ownership doesn’t automatically pass to the spouse of the deceased, probate will be required.

    In situations where the deceased owned real estate for more than 30 years a “first dealing” exemption applies. This allows for the real estate to be transferred directly to the beneficiaries or estate trustee. This is only available when it is the first transfer into the land titles system, there is a valid last will which has not yet been probated, and probate is not required for other assets. However, should any other assets of the deceased require probate, the first dealing exemption cannot be replied upon.

    How Long Does Probate Take in Ontario?

    Whether you work with a lawyer or not, the time needed to probate a will in Ontario is case specific. Probate application is normally filed within 1-2 weeks of consulting with your probate lawyer. All required documentation and paperwork is collected and submitted to the courts together with the application.

    The court processing time depends on the region. A court in Toronto, for example, might have a processing time of 4-6 months. An application for probate in an Ottawa court can take 1-2 weeks. Unfortunately, you cannot choose where to file — it must be the court closest to where the deceased resided.

    After probate is approved, the estate trustee has 1 year to administer the estate. That being said, receiving a clearance certificate from the Canada Revenue Agency can take as long as 4-6 months. Even the most diligent estate trustees may require beyond a year to administrate the will.

    Do You Need A Lawyer For Probate?

    You do not need a lawyer to execute a will or handle probate but it is in your best interests. Attempting to deal with the courts can be frustrating, confusing, and time-consuming. The proposed estate administration can be challenged by one of the beneficiaries and may require legal intervention.

    Understandably, probating a will in Ontario and handling an estate is an emotional process. Consult with a lawyer to ensure all legal requirements are being met. A lawyer can also assist if there is a concern about the conduct of an estate trustee, if the will is being challenged, or if any aspect of how an estate is being administrated is being questioned. The sooner you involve a lawyer in these sorts of disputes and disagreements, the better.

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