Do you need to obtain the Grant of Probate on Death?
NOTE: The article shared below is for informational purposes only and is not to be considered legal advice. For the correct advice pertaining to your situation, please contact a wills and estates lawyer in your area.
After the passing of a loved one, one of the key questions facing family members is whether they have to go to court in order to obtain the grant of probate. The short answer is, it depends on what is involved in the estate. In particular, one needs to know what type of assets exist in the name of the deceased individual and whether they can be transferred through other methods that may avoid the need for obtaining probate. In this short post, we will look at just some of these situations.
Where a grant of Probate may be required:
No will?
If the individual died without a Will, a situation known as an intestacy, a probate process must follow and the individual applying will obtain something called letters of administration. It is no wonder that lawyers stress the importance of having a Will prepared.
Deceased owned real property
If the deceased held real property (house, land, mortgages etc.), then it is likely that an application must be made to court in order to obtain the grant of probate. This is what the land registrar relies on in order to allow transfer or dealing with property in Ontario. There are some increasingly rare occasions that this may not be required if the property falls within the old Registry system.
Other property held by institutions
In a scenario where a bank or other third parties hold property under the name of the deceased, they may insist on the grant of probate. Why? Mainly so they are protected. The party acting as the Estate Trustee will have to obtain this grant through the court process in order to prove they have authority to deal with such assets. Most importantly, by insisting on such, the banks or institutions limit their liability by relying on this grant.
However, in the event that accounts are relatively small, a bank may not insist on the grant of probate particularly where indemnities are signed and parties are known to the bank – such as a surviving spouse.
Protection for the Executor and proving the validity of the Will
By following the process of obtaining the grant, the Executor limits him or herself from potential liability to a certain degree. This way, if another party makes a claim that they had authority to act under another will or document, the Executor can at least claim that they are acting under confirmation of the courts. Of course, this does not by any means lower the standard by which an Executor is expected to carry out his or her duties. Certainly, the grant itself can be challenged but there is no question that obtaining the grant is a method of protection for the Executor. Further, the act of obtaining a grant on it’s own is confirmation that a valid will exists – this is especially useful in a situation where there may be question regarding capacity of the deceased Testator.
Whether a grant of Probate may not be required:
Items that can usually be transferred from deceased’s name:
There may be property that is held by way of a right of survivorship that may be allowed to be transferred without the need for probate. However, recent cases in the Supreme Court of Canada put some of these joint accounts into question and legal advice should always be sought.
Additionally, an insurance company may transfer insurance proceeds to a listed under a beneficiary designation without the need for probate. The same may apply for registered plans such as RRSPs etc.
Depending on the jurisdiction involved, personal effects, cars and vehicles, Canada Pension Plan death benefits are usually transferred without the grant of Probate. Shares that the deceased held in a private corporation may also be allowed to be transferred without the grant.
Make a list and obtain legal advice
The main message here is that there may be a number of assets that require probate and a few that do not. As obtaining the grant of probate in an estate matter takes takes at least a number of months or more and requires patience from all involved. The key is to make a detailed list and gather information if you are acting as the executor and obtain legal advice from an estate lawyer as to what steps are to be taken.
Our office serves and assists with wills, estate, probate as well as real estate matters in Kitchener, Waterloo, Cambridge and surrounding areas such as the GTA .
NOTE: The article shared below is for informational purposes only and is not to be considered legal advice. For the correct advice pertaining to your situation, please contact a wills and estates lawyer in your area.
Read More2019 – Reminder to prepare your Wills and Power of Attorney documents
With 2019 just around the corner, a lot of us may be thinking about our new year’s resolutions.
Our reminder to you is to ensure that this year you check off a critical task on your to do list: Preparation of Wills and Power of Attorneys.
A Will allows you to take care of your family members first by ensuring that you select the correct person to manage your affairs after you have passed away. Among many other things, it also allows you to decide who will be the beneficiaries of your estate. While you may (incorrectly) assume that a certain person, perhaps your spouse, will automatically inherit your estate this is often not the case. Furthermore, those with minor children should particularly be concerned with appointing the best-suited party to serve as the Guardian for your children in the unfortunate event the parents pass away.
Do not let government legislation or courts dictate who is best suited to handle your affairs, look after your children and benefit from your estate.
Power of Attorney for property and personal care allow for the most trusted persons in your life to make decisions for you. In the absence of such documents, a lengthy and often expensive court process may have to be followed in order to allow another party to make such decisions for you in the event of incapacity.
It is very important to ensure that you have these documents completed in order to provide protection for your loved ones.
Wishing you a Merry Christmas and a Happy New Year !
Read MoreEstate planning for Separated Couples – reasons to get your will done
In Ontario, simply being separated from your spouse and not obtaining legal divorce may put your estate plan in jeopardy. Section 17(2) of the Succession Law Reform Act (“SLRA”) provides that for parties that have obtained legal divorce, any reference to a former spouse in an individual’s will is revoked and the will is construed as if the former spouse had predeceased the testator (party preparing the will). This is helpful due to the simple fact that after divorce, there is clearly a shift in interests and priorities and the law protects you in this regard. However, unlike the provision protecting those who obtain a divorce, there is no similar provision in a situation where spouses are just separated. That being said, it is a common misconception to believe that if you are separated, your ex-spouse will not inherit anything.
In fact, where spouses are separated (assuming no update to the will) and one party passes away, the surviving spouse maintains his or her entitlement under the will. The result is not much different if there was no will to begin with – the separated spouse may still qualify under the definition of a “spouse” under the intestacy rules.
A simple example may serve to bring the point home: if you have separated from your spouse (and not obtained a divorce) and own property jointly, the property may pass to the former spouse automatically. A visit to the lawyer’s office can prevent this from happening so that your portion of the property passes on to whom you intend. This may be to provide for your children, your siblings or even your new common-law partner.
Along with preparing or revising an existing will, upon separation, one must ensure they update their insurance policies, registered plans, and any pensions. Further, unless you want your separated spouse to be able to make your property and personal care decisions, you must attend to preparation of your power of attorney documents as well.
Since separation can drag on for some time, individuals need to ensure they take a close look at their assets and related estate documents to avoid unintended consequences.
The above serves as general information only and is not to be relied on as legal advice. Please contact your lawyer for your specific circumstances.
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