What is probate in Ontario? What is probating a will in estate law? 

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,