When is probate required
When is probate required
When the certificate of appointment of trustee is needed
Probate is required for most assets of the estate in Ontario. However, there is no legal requirement or need to probate if there are no deceased assets. Some estates do not require probate and can be transferred quickly without legal proceedings. The legal probate process is completed when a person is issued a certificate of appointment of trustee by the court. This process gives legal authority to the person to deal with the estate assets.
How do I know if probate is needed?
The nature of assets or any objections against the executor would determine if probate is needed. You would need probate if any one of the following applies to you:
- Real Estate in Ontario, such as a house, condo, apartment or cottage, in the name of the deceased or as tenants in common.
- 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
- If there is any dispute about the choice of the estate trustee or his/her actions.
You would not need to file probate if the assets were jointly owned for example joint bank accounts or joint tenants of a real estate or if the beneficiary was a designated beneficiary of a specific account such as RRSPs, RRIFs, TFSAs.
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.
Does a will always have to probate?
No, a will does not always have to be probated if any one of the following situations applies:
- 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.
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.
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.
What our probate lawyer can do for you?
Probate Lawyer Fees
Learn More about our probate lawyer fees structure.