While most people have heard about “probate,” few understand the circumstances when an estate goes to probate in Ontario. Probate applications can look a little different in every case, and will-makers, executors, and beneficiaries must understand the probate process to ensure that an estate is handled appropriately.
This blog post provides an overview of what probate is when an estate goes to probate in Ontario and what the process looks like. Note that the information below is provided to give readers a general idea of the probate process in Ontario. For assistance with a probate application, ensure you speak with an experienced wills and estates lawyer.
What is Probate?
Probate is a legal procedure wherein the court confirms that a will is valid, confirms the named executor’s authority to manage and distribute the estate, or provides another person authority to act as the estate trustee of an estate.
How Does Probate Work in Ontario?
In Ontario, an individual applies for a Certificate of Appointment of Estate Trustee in the Ontario Superior Court of Justice.
If the estate is valued at less than $150,000, you can apply for a Small Estate Certificate, which is handled through a simplified process. For more information, refer to our previous blog post on changes to the probate process and administration of small estates.
When applying for probate, you will submit legal forms and documents to the court, including:
- Completed court forms for your application (these forms and the information in them will vary depending on the circumstances). Note that the court forms will require you to list estate assets along with the value of the assets and you will need to be prepared to gather information about the estate.
- The will (and any additions or supplements to the will)
- Proof of the will-maker’s death (a death certificate or a court order)
After preparing your application materials, you will serve your application on everyone entitled to the estate, including beneficiaries. Afterwards, you will file your application in court and pay an Estate Administration Tax. In some cases, the applicant may also need to include an estate administration bond.
Once the steps above are handled, the court will review your application. In some cases, the court will issue a Certificate of Appointment of Estate Trustee without requiring a court appearance. However, in other cases, a judge may need to review your application in court (for example, if a beneficiary files a Notice of Objection to your application).
When is Probate Required in Ontario?
Probate is required if the will-maker owned real property or had assets held by a financial institution (e.g., funds held in a bank account). To that end, most estates will require probate in Ontario.
Probate is also required if:
- An individual dies without a will
- A will-maker does not name an executor in their will
- An external body (such as a financial institution) requests probate in order to release the will-maker’s assets
- A dispute arises regarding the appropriate estate trustee
- A dispute arises regarding the validity of the will
Who Can Apply for Probate in Ontario?
Typically, the person named as the executor in the will applies for probate. An executor is responsible for carrying out the will-maker’s instructions and administering the estate – therefore, in standard cases, it makes sense for the executor to probate the will.
However, the executor is not always the individual who applies for probate. In some cases, the executor may allow another individual to apply for probate. Or, in more common cases, if the deceased person dies without a will, another individual will have to apply for probate.
What Happens When a Person Dies Without a Will?
If a person dies without a will (known as an “intestacy”), an individual will still need to apply for probate to appoint an executor and distribute the estate assets. In Ontario, the Succession Law Reform Act, R.S.O. 1990, c. S.26 dictates how an estate is distributed when a person dies without a will. In simple terms, the deceased’s spouse and children will usually inherit the estate. If the deceased’s spouse and child are no longer alive, the Act provides further guidance for determining the appropriate beneficiaries.
Can My Probate Application Be Refused?
The court will let you know if there is an issue with your application by sending you written notice along with the reason why the Certificate of Appointment of Estate Trustee has been refused. For example, a probate application may be refused if you fail to include the appropriate documents in your application. In these cases, you can submit revised or additional materials for your application to correct the issue.
In other cases, a probate application may be refused if another person has filed a Notice of Objection. In this case, a court hearing will be scheduled to address the issues.
In any event, refusal of an application-whether due to an error or an objection can add additional time and cost to a probate application. If you are applying for probate, it’s critical to ensure you have the right information when you serve and file your application. It’s also important to consider whether the application is likely to be contested by any beneficiaries, other parties named in the will, or even the deceased’s next of kin if they are not named in the will.
What Happens After Obtaining a Certificate of Appointment?
After obtaining a Certificate of Appointment of Estate Trustee through a probate application, the executor can begin to carry out the distribution of the estate.
It’s also important to note that, within 180 calendar days of obtaining the Certificate of Appointment of Estate Trustee, the executor will need to file an Estate Information Return with the Ministry of Finance. This document provides the value of the deceased’s assets at the time of death.
What to Know When an Estate Goes to Probate in Ontario
The information above should give you a general sense of when estates must go through probate in Ontario and what the process looks like. As noted, however, the probate process can look different depending on the estate’s value and the assets and parties involved. The best way to ensure the probate process proceeds as smoothly as possible is to work with an experienced estate lawyer who can guide you through the process and ensure you handle your obligations appropriately.
Contact the Estate Lawyers at Tierney Stauffer LLP for Comprehensive Estate Planning
At Tierney Stauffer LLP, we take a client-focused approach to our work, providing innovative guidance through the estate planning and administration process. Whether you’re dealing with a deceased person’s estate or require estate planning assistance, our estate lawyers have extensive experience and will work to secure the results you need to move forward. Call us at 1-888-799-8057 or contact us online to set up a consultation with an experienced wills and estates lawyer.