What is Probate? And How To Conquer the Probate Process in Ontario
According to a survey study performed by legalwill.ca, “the number of Canadians with “out-of-date” Wills has shrunk from 3.5 million in 2016 to 2.95 million in 2021”. This is excellent news – but it's also something to keep in mind. If you've been chosen as the executor of an estate it's possible that the Will you're dealing with may not be the deceased's last Will. Probate will assist with such uncertainty.
Dealing with the estate process can be overwhelming, to say the least, as most people don't know where to start. So many processes, procedures, and documents - it's hard to keep it all straight.
So, what is probate? Who should apply? And how do you apply? We’ll cover the basics of probate so that you can get a good idea of how the process works and build from there.
Use this information in conjunction with the government resources currently available. Also, before you make any big decisions, it’s always best to speak to a lawyer regarding your unique situation.
What is Probate?
In Ontario, only an estate trustee has the authority to manage or distribute an estate. That’s where probate comes in. "Probate is a procedure to ask the Court to either:
Give a person the authority to act as the estate trustee of an estate
Confirm the authority of a person named as the estate trustee in the deceased’s Will
Formally approve that the deceased’s Will is their last Will”
Let's put probate into perspective, shall we? Let's say your name appears as the executor in a Will, and you have not yet gone through the probate process of receiving a Certificate of Appointment of Estate Trustee (or a Small Estate Certificate).
You head over to the bank to retrieve the funds of the deceased. You show your ID and the valid Will (showing that you are the estate trustee), and the bank is satisfied and provides you with the funds.
Now, let's say your sibling was named in the Will 10 years ago, but your mother had since switched it due to a falling out. Your sister goes to the bank and shows her ID as well as the old Will and tries to retrieve the funds the same way you did. The bank would have no idea which Will is valid. This is why probate is valuable and is required in most cases where funds and real estate property are involved.
Who Should Apply for Probate?
Now that you know what probate is, you need to decide if probate is required in your circumstances. Going through the probate process can be time-consuming, and if it's unnecessary, you'll be able to expedite the process.
As previously stated, usually if the estate contains real property or assets held by a financial institution, it will need to be probated.
The Government of Ontario states that a person may apply to probate if:
the deceased person died without a Will
the deceased’s Will does not name an estate trustee
a financial institution wants proof of a person’s legal authority to receive the money or investments of the deceased
the estate’s assets include real property which does not pass to another person by right of survivorship
the deceased’s real property must be sold (a Certificate of Appointment of Estate Trustee or a Small Estate Certificate should be obtained before anyone enters into an Agreement of Purchase and Sale)
there is a dispute about who should be the estate trustee
there is a dispute or potential dispute about the validity of the Will
some beneficiaries named in the Will are not able to provide legal consent
If, for example, there's a dispute about who should be the estate trustee, it's also wise to ensure that another individual hasn't already started an application (or been issued a certificate), as this can result in a rejected application.
You can find out by contacting the courthouse nearest to the location the individual resided at the time of death. If your situation meets one (or many) of the criteria above, you will need to start the application process with the court staff in the Superior Court of Justice.
How Do You Apply for Probate?
Although it may seem overwhelming and complicated to file a court application, it's straightforward if you follow the instructions. Again, we suggest you contact a lawyer to assist with this process if you’re not comfortable.
Small Estate Certificate v. Certificate of Appointment of Estate Trustee
When applying for probate, there are two options. You can apply for a Small Estate Certificate for estates valued at less than $150,000.00, or if the estate is valued at more than $150,000, you would apply for a Certificate of Appointment of Estate Trustee.
Preparing Your Application
To apply to the Court for probate, you will require the deceased's original Will (as well as any additions or substitutions) and a death certificate. You will then be required to file the following court forms with the courthouse:
1. Application (Form 74A)
2. Affidavit of Service (Form 74B)
3. Affidavits (if required for evidence)
4. Draft Certificate of Appointment of Estate Trustee (Form 74C)
The application itself contains specific information about the estate, which assists in calculating Estate Administration Tax. This tax is charged on the value of the estate as of the date of death and is payable at the time of your application filing.
Your situation may vary and, therefore, may require different forms. Rule 74 .04 of the Rules of Civil Procedure will also assist in figuring out which process and forms apply to your situation.
Issuing Your Application
Once you’ve reviewed the rules regarding procedures and have all of the necessary documents, you’ll be in a position to fill out the required court forms and have your application issued by the Superior Court of Justice.
Serving Your Application
After the application has been issued, you must serve it on anyone involved in the estate. You must then file the application with the Court along with proof of service, i.e. the Affidavit of Service mentioned above (Form 74B). The Rules of Civil Procedure set out the rules regarding the service of applications.
If your application is correct, the applicable Certificate will be issued. Alternatively, court staff could reject your application for various reasons, including missing information or documents, or perhaps there could be a more in-depth estate problem (such as a previous application already being filed). Court staff will notify you if they reject your application.
It’s A Process
The probate process is a process like anything else. Knowing what probate is, who can apply, and how to apply is the first step to completing the probate process. If followed correctly and in compliance with the rules and procedures, the process and the result will be straightforward and streamlined.
If you're looking for further assistance with your loved one's estate, contact us to see how we can assist. We offer various estate services to help ease the overwhelm of a process that can sometimes seem overly complicated – contact us today!