We have had a lot of inquiries from clients during the pandemic about having their Wills prepared, and in the process, we learned that there are many incorrect facts online that clients have read. We did a four-part blog series on Wills and Estates, which has been well-received among our readers. Therefore, we decided to write more articles to simplify some of the complex topics.

Today we will be discussing “Probate”, a word that is heard a lot in estate planning discussions. It comes from the Latin verb probere — which means to prove.

It is the process by the Courts to:

1. formally confirm that the Will is the last Will of the deceased;
2. grant the legal authority for the person named in your Will to act as your Executor;
3. appoint a person to act as the Trustee of your Estate if you do not have a Will.

Essentially, it is the process of proving that it is the true last Will of the deceased and that it is legally valid.

Steps in the Probate process

That was a simple description of the Probate process. Now let’s dig in more to see what the steps in the Probate process are.

While almost everyone goes through Probate whether they have a Will or not, let’s assume that you do have a Will for this example:

1. Your Executor would submit an estate court probate application to the Ontario Superior Court of Justice, with your Will, Proof of Death, a list of assets with values, and a cheque for estate administration tax (probate tax) from the funds of your estate.
2. Your Executor would mail a notice to all beneficiaries named in the Will or those not named but have a right to inherit (like your spouse), stating that you have died and that your Executor is applying to administer the estate.
3. The Court would determine if it is your last Will is valid and true, as some individuals have multiple Wills with various dates.
4. Once your Will has been accepted by the Court, it will then decide if the Executor that you named in your Will is still willing and able to serve as an Executor. This is an important step as there could be circumstances where your Executor cannot serve e.g. is no longer alive or lacks mental capacity to act. If you have a well-written Will, it would state an alternative Executor in these circumstances. If not, then the Court will need to determine who would be rightfully suited to be your Executor.
5. Once an Executor is accepted, they will be provided what a document called a “Certificate of Appointment of Estate Trust With a Will” which essentially grants them the legal authority to act as your Executor. If the Executor goes to your bank to get access to your bank funds, they would need to show this document for the bank to grant access.
6. The Estate Information Return (EIR), which provides details of all assets and their value, must be sent to the Ministry of Finance within 90 days after the court issues this Certificate. The Ministry of Finance uses the EIR to confirm that all provincial estate taxes were paid. The Ministry can reassess the estate for taxes up to four years from the date of the filing, so it is important to ensure it is accurate.

We have heard some misconceptions from clients based on what they have heard from friends or read online – here are some of the frequent ones that we want to clear up:

• The Probate process takes a couple of days – Unfortunately, the process is a lot longer. First you need to submit the application for Probate to the Courts, then, depending on the location of the Court, it can generally take weeks to months for the Courts to review the application for Probate. If there are challenges to the Will, then the process can be even longer.
• I don’t need to go through Probate because I have a small estate – the Probate process isn’t dependent on the size of your estate – it is dependent on what is in your estate, among other factors.
• Everyone must go through the Probate process – No. Probate is generally required in the following circumstances:
  • You die without a will;
  • You die with a will but without naming an Executor;
  • The bank wants proof of a person’s legal authority as Executor;
  • who should be the estate trustee is challenged;
  • the legal validity of the will is challenged.
• estate administration (probate tax) tax is only on the first $50,000 of the estate assets – No. Currently, in Ontario, the probate fees are $5 for every $1,000 of the first $50,000 of the estate assets (a total of $250) and $15 for every $1,000 of the estate that exceeds $50,000.
• Not all of my estate assets will be subject to Probate – This is true. Some assets will not be subject to the probate tax if they do not form part of your estate. For example:
  • Gifts: any assets you gifted to third parties while you are alive;
  • Joint Tenancy: assets held in joint tenancy e.g. a house;
  • Designated Beneficiaries:  RRSPs, TSFAs, and life insurance with a designated beneficiary (if it is someone other than your estate);
  • Trust: if you create a trust and transfer legal title of your assets to such trust.

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DISCLAIMER: The material contained in this website is intended to provide general information and comment and should not be relied upon as legal advice