Probate in Ontario
What is Probate in Ontario?
Probate simply means that the Court of Justice confirmed the Will to be a valid Last Will of the deceased. The Court of Justice will confirm that an executor has been named in the will and shall grant him/her legal authority to carry out the directions and wishes it will. Therefore probate is a process of submitting a Will in Court to obtain a Court Order approving the Will of the deceased to be “Last Will and Testament” of the deceased.
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Which Probate Court in Ontario?
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/
Who is an Executor?
‘Executor‘ is a person named in the Last Will & Testament to carry out the wishes and directions as per the Will. When a probate Application is submitted in court, the court will also confirm the appointment of an executor. If the person named in the Will is a female then the person is referred to as Executrix. The Executor or Executrix are also referred to as “personal representatives” or “estate Trustees” interchangeably. Therefore Probate is a process giving Executor legal authority to carry out directions and wishes of the deceased.
Do you need to Apply for a Probate? Or When is probate not needed in Ontario?
In almost all cases you would need to apply for probate. In rare situations when is probate not needed in Ontario, is if the assets are small in number and value. For instance, the deceased only left a car behind, in such a situation you can have the Car transferred without the need of a Probate as long as you have the notarized copy of the Will or original Will.
Common Question is “Do you need probate if there are no assets?” No. There is no legal requirement or need to go through the process of probate if there are no assets to probate.
Similarly, we have found if there was a single bank account with a minimum balance, some banks would not be willing to transfer funds to another account without a probate Order or certificate of Appointment Estate Trustee. The concept of probate is court validating that the will in question is the actual last will and testament of the deceased, therefore if an Executor goes to the bank to transfer bank account the Bank Representative would not know if the Will presented at the Bank was the actual and Last Will & Testament of the Deceased. Hence Probate is mandatory if the deceased has any assets.
The Following Assets are not required to be Probated.
- 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 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”. In such situation Probate is not required is when both spouses are on the title of the Property as “Joint Tenants” in such a situation, the property will automatically be transferred from the deceased partner to the other. The process to transfer the property from the deceased to the other partner is to appoint a Real Estate Lawyer who will file a survivorship Application, along with the copy of the death certificate. In such a situation you do not need probate but you need to file a Survivorship Application to transfer the estate. At Shaikh Law, we only charge $450 + HST for a Survivorship Application.
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.
What is Certificate of Appointment Estate Trustee with a Will
When the Probate Application is granted by the Court of Justice, the document issued bearing court seal confirming the Appointment of the Executor or Estate Trustee as well as confirms the Validity of the Will is the Certificate of Appointment of Estate Trustee. This Certificate of Appointment is legal proof that the executor has the Legal authority to carry out the directions in the will. Effective January 1, 2015, the executor who has received the Certificate of Appointment shall file with the Ministry of Finance an “Estate Information Return” within 90 calendar days from the date the Certificate of Appointment of Estate Trustee. The executor is duty-bound to submit a detailed Estate Information Return within 90 calendar days of how the estate’s value was determined. If the executor fails to file Estate Information Return within 90 then s/he may face a fine and/or imprisonment.
How Long does the Probate Process take?
- How long does it take to draft and file a Probate Application?
- How long does it take to from the date of filing Probate Application till the Probate is granted?
- How long for filing Estate Information Return?
- How long for distribution of funds by Executor from the date of Grant of Probate Application?
How long does it take to draft and file a Probate Application?
Drafting a Probate Application is not time-consuming, provided your lawyer has all the necessary information, such as a complete list of assets and debts. If you have completed the Client Intake form and have provided all supporting documents, then it is a matter of hours to draft the Probate Application.
If there is no will then renunciation and original consent needs to be obtained from all beneficiaries which could be time-consuming
How long does it take to from the date of filing 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. Therefore the timeline should not be taken as a concert timeline.
How long for filing Estate Information Return?
The Estate Information Return must be filed with the Ministry of Finance within 90 days from the Date of Certificate of Appointment of Estate Trustee is issued.
How long for distribution of funds by Executor from the date of Grant of Probate Application?
The executor is expected to distribute the funds as soon as possible however the entire process takes time and it is common for executors to take up to a year to distribute funds among the beneficiaries.
Probate Fees in Ontario or Probate Tax in Ontario?
Probate Fees is also referred to as Probate Tax or Estate Administration Tax. Probate Fees is calculated based on the value of the Estate being probated.
- $5 per $1,000, upto $50,000 the estate, Therefore and
- $15 per $1,000, exceeding $50,000 of the value of the Estate.
No Tax for any Estate valued less than $1,000.00
Do you need a Lawyer to Probate in Ontario?
There is no legal requirement to hire a Probate Lawyer in Ontario but it is always advisable to retain a Good and Experienced Probate Lawyer. It is always possible to “do it yourself probate”, however, court paperwork and legal jargon can become complex and demanding. Probate Applications can be rejected or delayed due to errors in the Application. Lawyer’s are trained and licensed to deal with such applications day in day out and therefore they are well versed with all requirements which may be difficult for an ordinary person to grasp.