Area of Law: Wills, Estates and Powers of Attorney
Answer # 145
Probating a WillRegion: Ontario Answer # 145
In some cases, a personal representative, or executor, must probate the Will, which means to prove in court that the Will meets all the legal requirements. Under Ontario law, this process is now called Applying for a Certificate of Appointment of Estate Trustee with a Will. This document serves as proof of the executor’s authority to deal with the estate. Each province and territory has a similar probate process.
Ontario law requires that within 90 days of the Certificate of Appointment of Estate Trustee with a Will being issued, an Estate Information Return must be filed with the Ministry of Finance. This Information Return will include details about:
- the Certificate of Appointment of Estate Trustee
- the deceased person
- the estate representative
- assets of the estate
Does every Will have to be probated ?
No. Whether a Will needs to be taken to court and “probated” depends on the specific circumstances of each case. If the estate is small and not complicated, then a regular copy of the Will may be sufficient to wrap up the affairs of the person who died. If the estate is large and complicated, or if people are challenging the Will, then it will be necessary to probate the Will to prove it is valid and to establish the authority of the executor or personal representative. For example, if you have a large number of investments, the bank may want to see a probated copy of the Will so it knows that the executor or personal representative has the power to deal with your money.
In addition, whenever the estate includes real property that is in the deceased’s name only, or if is owned with someone else as tenants in common, the Will must be probated. Although less common, the executor may need to start or defend a lawsuit on behalf of the estate, or represent the estate in a lawsuit that was already underway when the person died. In such cases, it is necessary for the executor or representative to establish their right to act on behalf of the estate by having the Will probated.
If a person dies with more than one Will, does each one need to be probated ?
No. Multiple Wills are a common estate planning strategy to limit the amount of Estate Administration Tax payable upon death (also known as probate fees). An executor does not typically require probate in order to administer all types of estate assets. Multiple Wills can allow you to obtain probate (and pay the related fees) for only assets that require probate, such as real property. Probate fees are payable only on the assets to be distributed in accordance with the Will being probated.
Typically, assets for which probate is required will be distributed under a Primary Last Will and Testament, while other assets that do not require probate, such as corporate interests or valuable personal effects, are addressed within a Secondary Last Will and Testament. In some cases, an estate plan will consist of three or more Wills, with each used to distribute a particular type of asset.
What property can be transferred without probate ?
Property held jointly carries with it a right of survivorship, and therefore, there is no need for probate. For example, spouses often hold property such as bank accounts and real property as joint tenants. This means that if one of the spouses dies, title to the property is automatically transferred to the surviving spouse.
In addition, probate is not necessary for assets held outside of a Will which have a named beneficiary. Such assets include, RRSPs, RRIFs, life insurance policies and pensions. These types of assets can be transferred fairly easily, usually by showing the bank or institution a copy of the person’s Death Certificate and identification verifying that they are dealing with the named beneficiary.
Where to file the application for probate
An application for probate must be filed at the Superior Court of Justice located in the county or district where the deceased had his or her permanent residence. If the deceased had no permanent residence in Ontario, the application is filed at the Superior Court of Justice in the county or district where the deceased’s property is located.
Estate Administration Tax
Probating a Will can be expensive. When a personal representative files an Application for a Certificate with the Superior Court of Justice, they must pay an estate administration tax. This tax is progressive and is based on the total value of the deceased’s estate.
For Certificates of Appointment of Estate Trustee applied for on or after January 1, 2020, you pay:
- NO tax if the value of the estate $50,000 or less, and
- $15 on every $1,000 of the value of the estate over $50,000.
No other court fees are required when filing the application. This tax is paid by cheque payable to the Minister of Finance. Visit the ontario.ca for more information on Estate Administration Tax.
What if there is no Will?
If someone dies without a Will, they are said to have died intestate. In such cases, someone interested in your affairs, usually your closest relative, has the right to be appointed as your personal representative by applying to the court. The application must also be filed at the Superior Court of Justice and the estate administration taxes must be paid. If the application is approved, the court will issue a document known as a Certificate of Appointment of Estate Trustee without a Will. This gives authority to the personal representative to manage and distribute the estate of the deceased who died without having made a Will. As in the case where a Will does exist, an Estate Information Return must be filed with the Ministry of Finance within 90 days of the Certificate of Appointment of Estate Trustee without a Will being issued.
This document gives authority to the personal representative to manage and distribute the estate, and it will be used to prove that they have the authority to deal with the legal and financial matters associated with wrapping up your estate. This application is normally filed at the same court the application for probate is filed and an administration tax may be charged.
As of January 1, 2016, ‘proof of death” must be filed when applying for a Certificate of Appointment of Estate Trustee (with or without a Will). This could be: a death certificate issued by the Registrar General; a Funeral Director’s proof of death certificate; or, an order made under the Declarations of Death Act, 2002 declaring that the person has died.
For a list of Superior Court of Justice offices, or more information about Wills, visit the Ontario Ministry of the Attorney General website. Wills are extremely important documents and relatively inexpensive to have prepared professionally. If you want to make sure your Will is legal and clearly expresses your wishes, you should consult a lawyer.
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