What assets are subject to probate in Ontario
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
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.
Do You Need to 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.
Bank Account with Minimum Balance
Interestingly, we have found if there was a single bank account with a minimum balance, some banks may or may not be willing to transfer the funds. If the bank is willing to transfer funds, the bank would required suitable indemnities & Personal Guarantees along with original or notarial copy of the will.
It is a discretion of the bank to transfer funds without Probate. However, recent trend is that 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.
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.
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.