9 Tips you MUST KNOW

9 Tips you MUST KNOW when applying for Probate in Ontario

If you are thinking of applying for probate then you must know the following tips and information before you apply for a Probate in Ontario.

  1. What assets are subject to Probate in Ontario and what is not
  2. How to withdraw funds from a bank
  3. Prepare a List of Assets
  4. Gather all documents to apply for Probate in Ontario
  5. Find out which probate court to file Probate application
  6. How long it takes to get a Probate in Ontario
  7. How much does probate cost in Ontario and Probate Ontario calculator?
  8. File Income Tax & Estate Information Return
  9. Hire a Probate Lawyer.
ontario probate

1. What Assets Are Subject To Probate

Almost all assets are subject to probate in Ontario; therefore, probate is required in most cases if the deceased has assets. There is no legal requirement or need to go through probate if there are no assets to probate. If the deceased has assets, then the question would arise, what assets are not subject to probate. 

The following list of assets are subject to probate in Ontario?

  • Real Estate in Ontario
  • bank accounts (includes foreign banks)
  • Shares, bonds, trust units, options, mutual funds, TFSAs, RRSPs, RRIFs
  • vehicles such as cars, trucks, boats, motorcycles, trailers situated in or outside Ontario
  • goods or material 
  • business property & interests
  • insurance

The following list of assets are NOT subject to probate in Ontario.

  • Real Estate Property outside Ontario
  • Canada Pension Plan (CPP) death benefits
  • Assets that pass by beneficiary designation do not need to be probated such as Jointly owned bank accounts, RRSPs, RRIFs, TFSAs with a named beneficiary other than ‘Estate’.
  • Insurance proceeds paid to a named beneficiary other than ‘Estate’
  • Real estate where the title of the property is owned as “Joint Tenants.” You do not need probate to transfer the property. You need to file a Survivorship Application to transfer the real estate. 
  • RESP is not required to be probated if both partners are joint subscribers of the plan, such as your spouse or common-law partner. If RESP is under a single subscriber’s name, then RESP would need to be probated. RESP is an asset which, until paid to the Beneficiary for school purpose, remains the asset of the estate.

 

Probate in Ontario

What is Probate in Ontario?

Probate is a process when the court issues a Certificate Appointment of Estate Trustee. The person appointed as an Estate Trustee has the legal authority to deal with the deceased’s estate. If there is a Will, then the certificate confirms the Will to be the last and valid Will of the deceased. 

2. How to Withdraw Funds

You may be able to withdraw funds from the deceased account to pay immediate expenses such as funeral bills, utility bills, property tax, probate tax, probate lawyer fees, and other direct costs.

Once you have obtained a copy of the death certificate, you should arrange for a meeting with your branch manager. All financial institutions are very co-operative with the family members of the deceased.

Your bank would require a copy of an invoice to prepare in the name of the deceased before issuing a bank draft. Therefore, all invoices should be in the name of the deceased with the care of the executor.
Example: Deceased C/o Executor

Who is Executor of Estate

An executor is a person named in the Will to carry out the deceased’s wishes and directions. The court confirms the appointment of the executor named in the Will by issuing a Certificate of Appointment of Trustee. If there is no will, then the executor effectively is the person who received a Certificate of Appointment of Trustee by the court.

assets are subject to Probate in Ontario

3. List All of the Assets.

The Estate Act requires a determination of estate assets value to calculate the Estate Administration Tax. It is necessary to prepare a list of all the deceased assets as soon as possible and the valuation of each asset. The valuation of all assets is used to calculate the Estate Administration Tax.

For probate application, you need to base the value on the asset’s at fair market value at the time of death. Ideally, all valuation should be supported by proper documentation such as statements or opinions from an appraiser.

Documents for Probate

Original Will

Correct Court Forms

Proof of Death

4. Documents for Probate in Ontario.

  1.  Original Signed Will with an affidavit of Execution to the Will with one photocopy. (if any)
  2. Death Certificate or proof of death. It can be obtained online CLICK HERE.
  3. Application for Probate in Ontario, along with relevant court documents.

When applying for probate in Ontario, you would need the original signed Will along with an affidavit of execution of the Will or Codicil. If there is more than one Will or Codicil, you must submit all supplemental documents and their supporting affidavit of execution.

Parties must ensure that they complete relevant court forms before applying for probate in Ontario. Probate without a will has a separate set of court documents, whereas probate with a will require different court forms to be filed. 

5. Which Probate Court?

You need to identify which Probate court in Ontario you can file your application. A probate application is filed before the court in which the deceased has his or her “fixed place of abode” a the time of death. If the deceased did not have a permanent residence place, then probate in Ontario can be filed where the deceased had assets or owned property at the time of death. 

The Superior Court of Justice in your County, district, regional Municipality has jurisdiction to deal with Probate Application and Estate related Matters. You can find local Superior Court of Justice near you by visiting this link http://www.ontariocourts.ca/scj/locations/

How Long it takes to get a Probate in ontario

6. How Long it takes to get a Probate

How long does probate take in Ontario from the date of filing a probate application till the probate is granted?

The Time from a Probate Application varies depending on the workload at a specific court registry. It usually takes between 6 to 8 weeks from the date the Probate Application is filed until the date the probate was granted. In some cases, the probate was granted after several months due to several errors in the probate application.

The court staff reviews the application within 15 days from the date it is received to identify if you have filed the correct forms and all necessary documents.  If all material is correctly filed, then the court record is searched to determine if any other person has made a similar application. The staff will also check for objections or recent Will deposited with the court.

If there are no issues with the Probate Application, the court staff will allocate a court file number to your Probate application within 15 days and set the matter down for a Judge.

A judge can only decide if a probate Certificate can be granted to you or not; if the judge is satisfied with your material, then the judge will pass a court Order.

7. How Much Does Probate Cost in Ontario?

Effective January 1, 2020, the cost of probate in Ontario has gone up to $15 for every $1,000 of an asset value over $50,000. However, you do not need to pay the Estate Administration Tax if the total estate’s value is $50,000 or less.

For Example: If Estate Value: $50,000
then Estate Administration Tax: $0

If Estate Value: $51,000
then Estate Administration Tax: $15

If Estate Value: $52,000
then Estate Administration Tax: $30.

The Estate Administration Tax or Ontario probate fees is payable when filing court documents unless a court orders the deferral of payment. The Estate Administration tax bank draft should be made payable to the Minister of Finance.

The cost of hiring a probate lawyer in Ontario and serving papers to other beneficiaries is in addition to Estate Administration Tax. 

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8. File Tax & Estate Information Return

Effective January 1, 2020, you must file an Estate Information Return within 180 calendar days after the Certificate of Appointment of Estate Trustee has been issued.  Contact your probate lawyer to help you file the Estate Information Return. You can download the Estate Information Return by clicking here.

You do not need to file an Estate Information Return if you Succeeding Estate Trustee with or without a Will or during litigation. 

In addition to Estate Information Return, the representative is also expected to file an Income tax return for the deceased under the provisions of the Income Tax Act. It is strongly recommended to file the tax return to avoid any late penalties by the Canada Revenue Agency. Contact your accountant to help you file the deceased’s income tax.

Probate Lawyer in Ontario

9. Hire a Probate Lawyer

You do not need to hire a lawyer to apply for Probate in Ontario. There are many self-help guides available online, should you choose to do it yourself. However, it is advisable to hire a professional, especially to avoid any complications, rejections from the court, and navigating court forms or understanding legal jargon. 

Probate Lawyers are experienced and understand the technicalities involved in the process. Multiple changes came into effect as of January 1, 2020, about probate in Ontario. Therefore, hiring a lawyer would ensure that your application is up to date and filed per the rules.

What our probate lawyer can do for you?

Probate with a Will

Contested Probate

Probate without a Will

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Small Estate
$ 1500 + HST
  • Estate Value Less than $50,000
  • Will Present
  • Will Not Disputed
  • Legal Advice on Estate Laws
  • Consultation with Probate Lawyer
  • Review of All Documents
  • Drafting of Court Documents
  • Submission of Court Documents
  • Probate Tax NOT INCLUDED
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No Will
$ 2500 + HST
  • Multiple Beneficiary
  • Will NOT Present
  • Distribution of Assets not contested
  • Legal Advice on Estate Laws
  • Consultation with Probate Lawyer
  • Review of All Documents
  • Drafting of Court Documents
  • Submission of Court Documents
  • Probate Tax NOT INCLUDED
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SIMPLE

Multiple Beneficiary
$ 1800 + HST
  • Estate Value More than $50,000
  • Will Present
  • Will Not Disputed
  • Legal Advice on Estate Laws
  • Consultation with Probate Lawyer
  • Review of All Documents
  • Drafting of Court Documents
  • Submission of Court Documents
  • Probate Tax NOT INCLUDED
  •  

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