How to Apply for Probate in Ontario?
Please note this article does not provide any legal advice.
When an individual passes away, it is important to note that he or she may leave behind a number of assets that may require probate (also known as a Certificate of Appointment of Estate Trustee). Probate is the legal court process that validates a person’s authority, as an Estate Trustee, to handle the estate of the deceased. When this application is approved, the applicant is granted the certificate of appointment (formerly known as a Probate Certificate), giving the estate trustee legal permission to manage the key aspects of the estate.
If you are dealing with this kind of situation, you might be considering how to apply for Probate in Ontario. This blog post covers the general steps and details that you should be aware of; read on!
Who can Apply for the Probate?
Not everyone can apply for probate of a will in Ontario. If the deceased had a will, the executor named in the will is typically the one that will apply for probate. If the executor named in the will has passed away or does not wish to act as the executor, it is important to check the will to see if a secondary executor is also appointed. The executor is to follow the instructions of the Testator (will-writer) and administer the estate according to its provisions. However, if the deceased dies without a will, it leaves a void and typically, it is the closest family member that applies for probate. However, there are consents and renunciations that do take place from time to time that are important to follow. If no one is willing to apply for probate, the Office of the Public Guardian and Trustee can be appointed administrator. In short, the following can apply for the probate:- the named executor(s) in the will
- eligible closet family member (next of kin) of the deceased or another individual approved by those entitled to apply by law.
What Documents do you Need to Apply for Probate?
To apply for probate in Ontario, this is the type of information that you will need:- Death certificate
- The original signed will or confirmation that the deceased died without a will
- Executor information such as full name, occupation, phone number, email addresses, etc.
- Estate inventory: An inventory of the estate
- All court forms
- Estate administration tax
How to Apply?
Step 1. Prepare your Application Form
The initial step in the process of applying for probate is to submit the application. You will need the documents mentioned in the earlier section. Then, you should complete some court forms to move ahead with your application. These court forms vary depending on the situation of the case. Now, this can be an overwhelming situation where you must consult a Wills and estates lawyer to help you complete the forms and documents.How to Choose a Law Firm for Probate
It is important that the law firm that you use deals with Estate and Probate matters on a regular basis. The process has its challenges and complexities along with time delays with the local courts. A law firm that is familiar with the court’s probate process is your best bet to move the matter along in a timely manner.Determine the Value of Estate
Another important part of the process is to enter the value of the estate's assets in the court forms. Let’s see what makes up the value of the estate. The open market value of the following on the date of death.- All assets, including the home, bank accounts, stocks and shares, furniture, jewellery, and any cars or boats. The home is often the most valuable asset.
- Any debts, including mortgages, loans, credit cards, household bills, and work not yet paid for.
- Any defined contribution or defined benefit pension.
Informing the People Associated
It's important to keep beneficiaries informed during probate. You must share all the significant developments and decisions affecting their inheritance. However, it is best to speak to your probate lawyer for further guidance. Notifying the beneficiaries or those entitled to be included in the will can lead to an easier estate process.Step 2. Apply to the Court
The application for probate will be submitted in the country or district where the deceased lived when they died. You can choose to apply in person, via mail, or via email.Pay the Probate Fees
During this step, you will have to pay the Estate Administration Tax (also commonly referred to as Probate Tax). A professional can help you calculate the amount that is necessary and to whom you have to make the tax payable. What if you do not have the funds available to pay the tax upfront? If you do not have the funds readily available, there are ways to defer the tax while you are aiming to gain access to the funds. Your lawyer can offer you guidance on this point.Hire an accounting professional
You must consult with a Certified Professional Accountant that deals with Estate returns for advice on which income/estate/ trust returns are to be filed and the deadlines. Among other things, an accountant will advise you of the need to file a final income tax return as well as an Estate/Trust Return.Step 3. Await the Outcome of your Application
Once you hear back from your lawyer, you will typically be issued a Certificate of Appointment, which means your application has been approved. The application gave you authority to manage the estate's assets and is responsible for paying estate debts. This is the stage where you can initiate the process of asset distribution among the estate beneficiaries. Caution is advised to ensure that you retain sufficient funds to ensure all liabilities of the estate are paid prior to distribution of the estate.How Long Does the Process of Probate Take?
The time period varies depending on the complexity of the estate and the backlog of the court in the jurisdiction in which the document package is sent. While the courts are slow, our office tries to submit the documents to the courts for review as soon as reasonably possible. Feel free to call us at 519 224 3082 (or email us at info@vrslaw.ca) to set up a call. Note, we do not handle estate litigation or dispute related matters.Which Assets are not Subject to Probate in Ontario?
- Subject to various case law (to be reviewed with your lawyer), jointly held assets may be excluded from Probate.
- Assets with a beneficiary designation like insurance proceeds, RRSPs, RRIFs, TFSAs, and LIFs
- Real estate outside of Ontario
- Canada Pension Plan (CPP) death benefits
