Probate in Ontario

9 Tips you must know when applying for probate in Ontario

Applying for probate in Ontario can be a complex and nuanced process. Understanding the intricacies is crucial whether you’re an executor or a beneficiary. Our comprehensive guide outlines nine essential tips to help you through this process, ensuring you’re well-prepared and informed at every step.

In this guide, you’ll discover:

  1. What Assets Are Subject To Probate?
  2. Estate Administration Tax (EAT) Calculator or Probate Tax Calculator 
  3. What documents do you need for a probate application in Ontario?
  4. Where to file a Probate Application?
  5. How long does it take to get a Probate in Ontario?
  6. How do you withdraw funds from a bank?
  7. How much does probate cost in Ontario?
  8. File Income Tax & Estate Information Return?
  9. Hire a Probate Lawyer.

     

Whether you’re just starting or already deep into the probate process, these tips will provide valuable insights and clarity. ?

Probate in Ontario

What is Probate in Ontario

Probate in Ontario is a crucial legal step in administering the estate of someone who has passed away. It involves the official recognition and validation of a will by the Superior Court of Justice, confirming the executor’s authority to manage and distribute the deceased’s assets. This process ensures that the estate is handled according to the deceased’s wishes and provides legal clarity to the executor’s responsibilities.

Who can apply for Probate in Ontario

It is best to speak to a lawyer before applying for probate. Generally speaking, if an adult person or an organization has been named an estate trustee in the Will, they would be applying for probate in Ontario.

If a person dies without a will, their spouse or common-law partner can apply as an estate trustee. If the deceased does not have a surviving spouse, their next of kin can also apply for the appointment of an estate trustee. Please speak to a probate lawyer to learn who can apply for a probate in Ontario. 

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. However, there is no legal requirement or need to go through probate if there are no assets to probate. 

Before applying for probate, you must list all assets subject to probate and their total net value as of the date of death to calculate estate administration tax or probate tax. Please speak to a lawyer before you take any further steps. 

The following assets are subject to probate in Ontario?

  • Real Estate in Ontario
  • bank accounts (includes foreign banks), including all investment accounts.
  • 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.

The following 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 purposes, remains the asset of the estate.

Do you need a lawyer to file for a probate in Ontario?

No. A short answer is you do not need a lawyer to file for a probate application. There is no legal requirement to hire a lawyer to file a probate application in Ontario.

However, it is essential to understand that a probate lawyer would be qualified to draft the probate application as per Ontario’s civil procedure rules. An experienced estate lawyer or a probate lawyer can look after all aspects of a probate application. The chances of rejection of a probate application would be less if you were to retain an estate & probate lawyer who is more experienced in drafting such applications. Your lawyer will be responsible for attending to any court objections and resolving such complaints to the judge’s satisfaction.

A probate lawyer can also advise a tax-efficient way to file probate and guide you to take steps to protect assets and what other measures are needed other than probate application.

Overall, an estate lawyer can complete the probate process faster than others. In addition, a probate lawyer will be your go-to person if you run into a problem when distributing the assets.

2. Estate Administration Tax (EAT) Calculator

The Estate Act requires a determination of estate assets value to calculate the Estate Administration Tax. Therefore, it is necessary to prepare a list as soon as possible. The valuation of all assets is used to calculate the Estate Administration Tax. Probate application, you need to base the value on the assets at fair market value at death. Ideally, all valuation should be supported by proper documentation, such as statements or opinions from an appraiser.

This tax is calculated based on the total value of the estate:

  • For the first $50,000 of the estate value, the EAT is $5 per $1,000.
  • For the estate value over $50,000, the rate increases to $15 per $1,000.

Probate Tax Calculator.

Please enter a valid amount.

3. What documents do you need for a probate application in Ontario?

Original Will

Proof of Death

Correct Court Forms

Documents required to file a probate application in Ontario are as follows:

  1. Original Signed Will with an affidavit of Execution to the Will with one photocopy. (if any)
  2. Death Certificate or proof of death. You can obtain a death certificate from service Ontario online. Click HERE
  3. Prepare an application for probate in Ontario, along with relevant documents. You can download all court documents online from the Ontario court services. Click HERE

When applying for probate in Ontario, you would need the original signed Will and 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. Law Society of Ontario has a great article to help you guide how to locating a Will. Click HERE 

Parties must complete relevant court forms before applying for probate in Ontario. All court forms must be completed correctly and in accordance with the laws, rules and civil procedure code. It is common to make mistakes, albeit the process it not extreemly complicated.  For example, probate without a will has a separate set of court documents, whereas probate with a Will requires different court forms to be filed. Similarly probate for assets valued at $150,000/- or less would have different set of court documents. Therefore, it is best to speak to a probate lawyer to ensure court forms are filed correctly.  

4. Where to file Probate Application

Once you have made a list of all assets, calculated their value for estate administration tax, gathered and completed all relevant documents. You want to make sure you file your documents with the correct courthouse.

All probate applications must be filed before the Superior Court of Justice in Ontario. Therefore you need to file your application before the correct Superior Court of Justice in Ontario. Ideally, a probate application is filed at the court where the deceased lived at their death. However, if the deceased was not living in Ontario but had property in Ontario, then the court where the property is located. 

 Click Here to Find court locations in Ontario.

5. How long does it take to get a Probate in Ontario?

In Ontario, a probate application generally takes approximately 6 to 8 weeks to receive the Certificate of Appointment of Estate Trustee. This estimated timeframe assumes a straightforward estate and no unforeseen complications.

It’s important to note that this 6 to 8-week period can vary based on several factors. These include the complexity of the estate, the clarity and details in the will, the number of beneficiaries involved, and any potential claims against the estate.

Additionally, the processing times may be affected by the workload and efficiency of the specific court jurisdiction handling the probate application.

Engaging a probate lawyer is highly advisable. A legal professional can significantly streamline the process, ensuring all paperwork is accurately completed and filed.  A lawyer’s expertise is invaluable in navigating complexities and avoiding common pitfalls that can lead to delays.

How Long it takes to get a Probate in ontario

6. 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 cooperative with the family members of the deceased.

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

7. How Much Does Probate Cost in Ontario?

Generally, Probate in Ontario costs between $1,500 to $2,500 + HST in legal fees for uncontested probate applications, plus the Estate Administration Tax (EAT), which is calculated based on the estate’s total value.

These legal fees cover the preparation and filing of necessary documents, as well as professional guidance throughout the probate process. It’s important to note that this is an average range, and costs can vary depending on the estate’s specifics. In contrast, contested probate applications are more complex and are typically billed by lawyers on an hourly basis, which can lead to higher overall costs.

Choose Your Package

legal fees

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
  • Uncontested Probate
  •  
Lowest Fees

legal fees

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
  • Uncontested Probate
  •  
Popular

legal fees

Will Present
$ 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
  • Uncontested Probate
  •  

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.

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At our Law Firm we beleive in giving our client’s an oppourtunity to learn more about our expertise and experience before deciding to retain us. We offer 15 minutes free legal advice in Ontario. Call us, email us or use the form below to book your Free consultation with a lawyer.

If you are based out of Ontario, please email us to book your appointment. 

 

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