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What is probate in Ontario? What is probating a will in estate law?
Last Updated on October 21, 2024 by Shayna Beeksma
Disclaimer: This article answers the question, “what is probate?” It is intended for the purposes of providing information only and is to be used only for the purposes of guidance. This article is not intended to be relied upon as the giving of legal advice and does not purport to be exhaustive.
Losing a loved one is never easy. Amidst the grief and emotional turmoil, the practicalities of handling their affairs can feel overwhelming. And then there’s this term you keep hearing: probate. It seems like everyone is saying you need to go through probate or asking if you have probated the will or gone to probate court. What does that mean? These questions swirl in your mind, adding to the already mounting stress.
You’re not alone in this journey. At Beeksma Law, we understand the confusion and uncertainty that comes with navigating probate after the loss of a loved one. It’s a daunting process, filled with legal complexities and unfamiliar terminology. In this article, we’ll go over what probate means and what is involved in probating an estate.
What is probate?
Probate is the legal process through which the courts officially recognize a will, or in cases where there is no will, appoint someone to handle the deceased’s affairs. This procedure aims to confirm the death of the testator, verify the authenticity of the will, and ensure its validity. It grants the executor or administrator (in the case of an estate without a will) the authority to manage and distribute the deceased’s assets.
Can I avoid probate?
We hear this question all the time: do I really need to go through probate?
In Ontario, probate isn’t always necessary, but we typically recommend it for most estates. You cannot avoid probate simply because the estate is small, there is no real estate, or there is only one beneficiary.
Probate becomes necessary when you need court approval to transfer the assets of the deceased to the estate trustee. This could be to validate the will, choose the executor, or resolve disputes among beneficiaries, especially if some are minors or incapacitated.
However, some estates, like those where all assets easily pass to the surviving spouse or those with minimal assets or debts, may not require probate. For example, couples may jointly hold any bank accounts and real property. Yet, if real estate is involved and doesn’t automatically transfer to the surviving spouse by right of survivorship, probate is usually necessary.
However, here’s the catch: even if everyone agrees and the estate seems straightforward if a financial institution demands probate, you must go through the probate process. While some banks may waive probate for small estates without beneficiary conflicts, this is at their discretion. If they require probate, it’s best to proceed promptly rather than dispute with the financial institution.
How do I apply for probate?
To apply for probate in Ontario, there are several steps you need to follow.
Prepare the probate application
The first step is to prepare the probate application, which involves gathering various documents, including the deceased’s original will, any additional documents related to the will, and proof of death such as a death certificate. Additionally, you’ll need to complete specific court forms required for the probate application.
Determine the value of the estate
Determining the value of the estate is another crucial aspect of the probate application process. This involves assessing the total value of all assets owned by the deceased at the time of death. This would include:
- real property like land and buildings,
- any bank accounts
- personal property such as jewelry, artwork, and furniture.
- life insurance, if there is no beneficiary named
This is important because it will determine how much estate taxes must be paid.
Notify any relevant parties (such as beneficiaries)
Before submitting the probate application to the court, it’s necessary to notify all relevant parties who are entitled to a part of the estate, including estate beneficiaries. You can notify them through email, mail, or courier.
File your probate application
Once the probate application and required court forms are completed, they can be filed with the Superior Court of Justice in the county or district where the deceased lived at the time of death. This can be done in person, by mail, or email.
Pay the estate administration tax
Finally, you must pay the Estate Administration Tax, also known as probate tax, when submitting the probate application. This tax is based on the value of the estate. An administrative bond may also be required – we discussed administrative bonds in this article.
What if the deceased person did not have a will?
First, determine that there truly is no will. We discussed substantial completion here, but to summarize, the courts may consider a finalized will as valid, even if it was not fully executed. If there’s any uncertainty regarding whether the deceased person had a Will, it’s prudent to diligently search for one and document these efforts. It is necessary to demonstrate to the courts that all reasonable measures were taken to locate a will, to no avail.
If there was no will, this process would be more complicated. (In fact, this is one of the most compelling reasons to prepare an estate plan – to avoid additional complications and probate costs.) It will take longer to go through the probate process than if there was a will.
If you are applying to become the estate trustee, you must notify all estate beneficiaries about your intentions and obtain original signed consents from beneficiaries holding a majority interest in estate assets. If there are minor or mentally incompetent beneficiaries, notice of the application must be served to their parent or guardian and to The Children’s Lawyer or Public Guardian and Trustee. A bond is much more likely to be required in this instance.
Receiving a certificate of appointment of estate trustee
Once you have filed the proper documents with the court and have paid the probate fee, you will receive a certificate granting you the authority to administer the estate. You are now permitted to act on behalf of the estate.
Questions about probate? Get in touch with Beeksma Law today!
For all your probate questions and concerns in Ontario, Beeksma Law is here to provide expert guidance and support. With our extensive knowledge and experience in estate law, we can help you navigate the probate process.
Whether you’re preparing a probate application, dealing with complex estate matters, or simply seeking clarity on legal issues, you can trust Beeksma Law to offer personalized assistance tailored to your needs. Don’t hesitate to reach out to our team for reliable counsel and peace of mind during this important time,
Answer to Commonly Asked Questions About Cohabitation Agreements in Ontario
Last Updated on June 5, 2024 by Shayna Beeksma
Disclaimer: This article on cohabitation agreements is intended for the purpose of providing information only. It is to be used only for the purposes of guidance. This article is not intended to be relied upon as the giving of legal advice and does not purport to be exhaustive.
In recent years, there’s been a noticeable trend away from traditional marriage, with more couples choosing to live together instead. Whether driven by shifting societal norms, financial considerations, or personal preferences, cohabitation has become increasingly commonplace. However, this shift highlights the importance of protecting individual rights and interests, especially without the legal protections that marriage provides.
In response to this need, many more couples are choosing to enter into cohabitation agreements to navigate their shared living arrangements. These agreements offer clarity and protection, ensuring that both partners’ rights and responsibilities are clearly defined and upheld.
In this article, we’ll delve into the commonly asked questions about cohabitation agreements in Ontario, providing clarity and insight for those embarking on this journey.
1. What is a Cohabitation Agreement?
A cohabitation agreement is a legally binding agreement between the parties. The parties are two individuals who are living together in a romantic relationship but are not married. An agreement between married couples is referred to as a marriage contract. This agreement outlines various aspects of their cohabitation, including property division, financial responsibilities, and support obligations. It serves as a proactive measure to clarify each party’s rights and obligations in the event of a relationship breakdown or separation.
2. What Should I include in a Cohabitation Agreement?
Cohabitation agreements can cover a wide range of topics, depending on the needs and circumstances of the parties involved. That is why we warn against using templates – your agreement should be as unique as your relationship itself. However, your cohabitation agreement may include provisions relating to:
- Division of property: Specifies how assets and debts acquired during the relationship will be divided in the event of a breakup.
- Financial support: Addresses issues related to spousal support or financial assistance in case of separation.
- Property ownership: Clarifies ownership rights and responsibilities regarding jointly owned or shared assets.
- Rights and responsibilities during the relationship: Defines each party’s obligations regarding household expenses, financial contributions, and other matters.
- Dispute resolution: Establishes procedures for resolving disputes that may arise during the cohabitation period or upon separation.
A cohabitation agreement does not include provisions related to child custody or child support.
3. Who Should Consider a Cohabitation Agreement?
Cohabitation agreements are recommended for any couple who intends to live together in a committed relationship without getting married. Whether you’re purchasing property together, sharing financial resources, or simply want to protect your individual interests, a cohabitation agreement can provide peace of mind and clarity for both parties. It’s especially important for individuals with significant assets or children from previous relationships to safeguard their interests through a formalized agreement.
Unlike married spouses, unmarried partners are not covered by the property division provisions of the Family Law Act in Ontario. This means that if unmarried couples separate, they don’t automatically have a legal right to divide property acquired during the relationship. Instead, property rights and any agreements between partners determine how assets are divided. Without clear documentation, property disputes can become complicated. That’s why it’s important for unmarried couples to consider creating a cohabitation agreement. This agreement helps outline property division and other important issues, ensuring fairness and clarity for both parties.
4. Are Cohabitation Agreements Legally Binding in Ontario?
Yes, cohabitation agreements are legally binding in Ontario, provided they meet certain criteria outlined in the province’s Family Law Act. To be enforceable, the agreement must be in writing, signed by both parties, and witnessed. It should also be entered into voluntarily, without coercion or duress. Additionally, each party should fully disclose their financial information and seek independent legal advice before signing the agreement.
5. Can a Cohabitation Agreement Be Challenged in Court?
While cohabitation agreements are generally enforceable in Ontario, they may be subject to challenge under certain circumstances. If one party alleges that the agreement was signed under duress, coercion, or without full disclosure of assets, a court may invalidate all or part of the agreement. Similarly, if the terms of the agreement are found to be unconscionable or unfair at the time of signing, a court may refuse to enforce those provisions.
This is why it is advisable to seek legal advice before you sign a cohabitation agreement. This way, you can protect your interests by ensuring you and your common-law spouse have a clear plan if the relationship ends. It is certainly in your best interests to avoid a complex court battle.
6. What Happens If We Decide to Get Married?
If a couple who is in a common law relationship decides to get married, the agreement may be converted into a marriage contract or prenuptial agreement. Alternatively, they may choose to draft a new agreement that reflects their changed marital status and intentions. It’s important to review and update any existing agreements to ensure they remain valid and enforceable in light of changing circumstances.
7. How Do I Get Started with a Cohabitation Agreement?
Creating a cohabitation agreement involves several steps, starting with open communication and mutual understanding between you and your common law partner.
It’s best if each party receives independent legal advice from a qualified lawyer, although it is not required. The lawyer can assist in drafting the agreement, ensuring that it complies with Ontario’s legal requirements and adequately protects the interests of both parties. Once the agreement is finalized, it should be signed, witnessed, and kept in a safe place for future reference.
If you’re considering cohabitation or already living with your partner, Beeksma Law is here to assist you in preparing a cohabitation agreement tailored to your specific needs and circumstances. With our expertise and dedication to client satisfaction, you can trust us to guide you through the process with professionalism and care. Get in touch with us today to ensure that your rights and interests are protected as you embark on this new chapter of your relationship.