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Probate Court Process in Ontario – A guide for individuals handling a loved one’s estate.

Ensuring that a loved one’s estate is settled and done so in a diligent manner can be a very intricate and time-consuming process. Having appropriate legal representation to assist with the probate process can make navigating the probate court process much easier and avoid legal pitfalls. While not intended to be comprehensive in nature, this guide lays out a basic summary of what is involved and some things to keep in mind if you are involved in settling a loved one’s estate. For your particular estate or probate matter, please speak to a lawyer that deals with estate and probate matters in Kitchener.  
What is Probate?
Probate (formally known as a Certificate of Appointment (“Certificate”) is the legal process where the court validates the Last Will and Testament of a deceased person. This allows for the estate trustee named in the will to distribute the deceased person’s assets according to their wishes.  
What if they did not have a Will?
The probate process also assists in appointing an individual as an estate trustee in the event that there is no will. The court will approve the application and grant appointment to the applicant, to be responsible for distribution of the estate. The requirements are more involved and it is important that all aspects be considered and requirements met prior to submitting this application.  
The Importance of Legal Representation during the Probate Process
There are various reasons as to why you should consult with legal professionals that focus on handling the process involved in the courts. This will allow for a smooth process overall while protecting you so you can ensure that you are not missing any key steps.  
    • i) A lawyer that has experience in dealing with the courts is invaluable in order to prepare the required documents and having the certificate granted by the court. Having an experienced and knowledgeable legal team will ensure that the estate is being handled in careful manner.
 
    • ii) Submitting for probate doesn’t simply mean submitting it for approval. It also means that it is being completed in compliance with the laws and rules of the Court, Further, it also means that you are assuring to the court that you, as a potential estate trustee that is seeking appointment of this role are completing your obligations related to making appropriate probate tax payments to the court as well as filing the estate information return, paying taxes etc. as and when required.
 
    • iii) A legal team looking after your needs will also ensure that in order to avoid potential legal issues down the line and that you are in compliance with all of your legal requirements including, but not limited to, obtaining a clearance certificate from the CRA on account for taxes. This and many other steps provide you the peace of mind to know that an experienced team is on your side assisting you throughout the process.
 
    • iv) Where there are potential concerns that could leads to conflict, a skilled lawyer can advise and navigate the pitfalls involved in such a situation. Guidance at this stage will keep you from getting into trouble while ensuring that you only take legally approved steps and also take a detailed account of all the steps you take throughout the process, thereby putting to rest any claims that another individual may have against you.
 
The Probate Process: From Start to Finish
The first step is reaching out to a law firm to discuss particulars of the estate. During the early stages, the law firm may want to discuss details related to the deceased in order to get an understanding of what is involved and which assets the estate consists of. All the essential information will be gathered including, but not limited to, particulars of the will, details of the beneficiaries, the assets and the institutions that hold them. This will assist in collaborating on the best method to initiate the probate court process. The legal team will then begin gathering accurate estate information from institutions and other professionals to get a clear understanding of the estate. Depending on the nature of the estate matter, you will also be involved in this process. It is important that an inventory of the estate assets (from the date of death) be obtained. It is not unusual for institutions to not be willing to share such particulars with a prospective estate trustee without a grant of probate. This leads to a catch-22 type of a situation and it is important to strategize with your legal team in order to continue the process despite reluctance by institutions (such as banks, credit unions etc.) to share any information. The important thing would be to ensure that the estate does not ‘go stale’ with no movement for an extended period of time, without reason. The legal team will assist you to find a way to keep the estate moving despite the hurdles that you may face. From there, the lawyer and their team will begin preparing all of the appropriate forms and documents for filing with the probate court. This includes the application for a Certificate of Appointment of Estate Trustee, which is the application most people refer to as “probate”. You will also be advised of your key obligations including filing of various returns with both the Ministry and the CRA and any other entities that are suitable in a particular situation. If there are any outstanding debts to the estate or taxes that remain unpaid, it is important that these are resolved prior to distributing the estate to the beneficiaries, to avoid unintended consequences. In the event that there are some disagreements among beneficiaries regarding the estate, having the proper representation will allow for negotiation in order to aim for a fair resolution in accordance with the law. Once the file is submitted to the court, it will determine the validity of the will and grant the Certificate of Appointment, or return the file for additional information. If the court grants the Certificate of Appointment to the Estate Trustee, from there the distribution may begin. This certificate is what is most commonly requested by the institutions so that the Trustee may access funds related to the Estate. At that right time and once all appropriate releases have been obtained and accounting completed, the estate trustee, now court-appointed, generally begins to disburse the estate among the beneficiaries involved. It is important to keep a record of the distribution as such information may be required to be reproduced at a later date. As you can see, there are a series of steps (some listed, some not listed in this guide) that are involved. It is critical to work with someone that has a thorough understanding of the requirements involved in a probate matter and has the required experience in order to complete a smooth probate process for a loved one’s estate. **Please note that this article is for general information only and is not intended to be relied upon as legal advice. Since every file and estate is unique, please contact a probate lawyer in Kitchener for advice in relation to a specific matter.**