Probate meaning: After an individual passes away, they may have various possessions, properties, and financial obligations that are collectively referred to as their estate. The responsibility for managing and distributing an estate rest solely with the estate trustee, who holds the legal authority probate in Ontario under the proper probate laws. In essence, probate is an essential procedure where a request is made to the Ontario Superior Court of Justice to empower an individual to serve as the estate trustee of an estate by formally recognizing their appointment through the deceased's will, and verifying that the will is indeed the deceased's final and valid document outlining their wishes.
Do I Require a Certificate of Appointment of Estate Trustee or Small Estate Certificate?
In order to recognize which of the two documents is required, it is important to know that the necessity of a Certificate of Appointment of Estate Trustee or a Small Estate Certificate is contingent upon the nature of assets in the estate and the specific assets within the estate determine whether estate probate is required to facilitate their distribution. A Certificate of Appointment of Estate trustee is typically necessary when the deceased owned real estate or significant assets are held by financial institutions, as these assets cannot be transferred without the probate process. If the value of the estate falls below ONE HUNDRED FIFTY THOUSAND CANADIAN DOLLARS ($150,000.00 CAD), you can request a Small Estate Certificate. However, if the estate consists primarily of personal property, such as furniture, clothing, and other personal effects, a probate application may not be required in Ontario. Therefore, it is advisable to investigate whether the entity in possession of the estate assets or requesting a payment or action from the estate requires a Certificate of Appointment of Estate Trustee or a Small Estate Certificate before submitting a probate application.
What to Know Before the Ontario Probate Process?
To avoid potential rejection of your probate application, it's advisable to verify whether any other party has initiated a court application or obtained a certificate before you begin the probate process. This ensures that your effort is not duplicated and increases the likelihood of a successful outcome.
For best practice, our advice is for you to reach out to the estate trustee specified in the will or their legal representative (if applicable), the deceased's family and friends, or the court office in the regional municipality where the deceased resided at the time of their passing. If the deceased did not reside in Ontario at the time of their death, try contacting the Ontario probate court in the location where they owned property in Ontario. Where you require assistance with this procedure, feel free to correspond with our Scarborough law firm and talk to our estate lawyer for the best legal advice.
Should you be satisfied with the said, you may be able to apply for probate if: the individual passed away without a legally binding document outlining the distribution of their assets; the financial institution is requesting documentation that establishes the authority of the person claiming entitlement to the deceased's funds and investments; the estate encompasses real property that cannot be automatically transferred to another individual, necessitating its sale; there is a disagreement regarding who should be appointed as the estate trustee; there is a dispute of the validity of the Will itself; or some of the beneficiaries designated in the will are unable to provide legal consent due to their circumstances.
What Documents Are Required for Probate in Ontario?
To initiate the probate process, you'll need to compile the necessary documents stipulated by the court's rules and regulations. The following documents should be considered:
The deceased person’s original Last Will and Testament, if applicable;
Proof of death;
Assets of the deceased, as per the date of death; and
Competently drafted of all necessary court documents. It is important to note that the specific court documents needed are contingent on the circumstances. As a competent estate lawyer and with a law office in Toronto and Bowmanville, we understand Ontario estate law and are well informed of which documents are required to be satisfied.
Recognize the True Value of the Assets Solely Belonging to the Deceased's Estate
The deceased's estate includes the total worth of their real assets, such as land and buildings, and personal assets, like jewelry, artwork, furniture, and other items, as at the time of the deceased’s passing. Once determined, the estate's value is the total sum of the real and personal property’s worth.
After concluding the total sum value, you must determine the amounts owing under the Ontario estate tax legislations and have an obligatory duty to provide the estate administration tax to the Minister of Finance.
Serve All Necessary Probate Documents
Prior to serving the necessary probate documents on all appropriate persons, you need to sign the document in the presence of a Commissioner for Taking Affidavits in the Province of Ontario. Afterwards, provide a copy of the application form to all individuals who have a rightful claim to a portion of the estate, which includes the beneficiaries of the estate. Of great importance, where an entitled beneficiary is either a minor an incapable adult, you may have further requirements to serve all necessary court and probate documents to the Office of the Children’s Lawyer or the Office of the Public Guardian and Trustee.
File All Necessary Probate Documents
All required paperwork, including the application and accompanying legal documents, needs to be submitted to the Superior Court of Justice. This necessary procedure should be satisfied at the Ontario Superior Court of Justice where the individual resided at the time of their passing. In cases where the deceased was not an Ontario resident at the time of death, the probate documents should be submitted to the courthouse in the location where the deceased held property within the Province of Ontario.
When filing your application with the Ontario Superior Court of Justice, you are required to pay the Estate Administration Tax.
Issuance of a Certificate of Appointment of Estate Trustee
After submitting your application, court personnel will assess if you are eligible to receive a Certificate of Appointment of Estate Trustee. Amongst many other objectives, this assessment includes verifying if all necessary information, proof, and paperwork have been provided for.
Where your application is successful and upon approval of your submitted material, you will be granted a Certificate of Appointment of Estate Trustee. This document will authorize you to oversee the estate's assets and settle any outstanding debts of the estate.
Red Booth Law
Estate Litigation | Probate | Wills & Trusts
Toronto | Bowmanville | 416 953 0040 | info@redboothlaw.com
NOTE: It's important to know that laws and regulations are subject to change, and the information provided in the article may not reflect the most up-to-date legal requirements. Before making any decisions or taking any action, it's essential to consult with a legal professional to ensure that you have the most current and accurate information.
The content provided on this website is for informational purposes only and should not be considered as professional legal advice. If you have specific questions or concerns about your situation, it's always best to consult with our estate lawyer who can provide personalized guidance.