Probate Applications

“Probate” or “letters probate” is often used to describe the situation where the Estate Trustee (sometimes called an “executor”) obtains a Certificate of Appointment of Estate Trustee. A Certificate of Appointment of Estate Trustee is signed by a judge or a court registrar and sets out the name of the deceased, identifies the Estate and gives the name and address of the Estate Trustee.

A Certificate of Appointment of Estate Trustee is “good against the world” in that it provides necessary assurance to third parties, such as financial institutions, that they may release funds to the Estate Trustee.

Usually, a Will names someone as Estate Trustee and that person can apply for probate. If no Estate Trustee is named in the Will, or in the event that a person dies intestate (without a will), family are allowed to apply.

The cost involved depends on the size and complexity of the Estate. In addition, payment of an estate administration tax, or what used to be known in Ontario as “probate fees,” is due at the time an application for a Certificate of Appointment of Estate Trustee is submitted. This tax is based, with some exceptions, on the value of all of the deceased’s assets located in Ontario. The tax is essentially 1.5% of the value of the estate being probated.

Probate is required more often than not. Most financial institutions, insurance companies, the land registry office, or other entities which hold the deceased’s assets will not release funds or allow a party to access the deceased’s funds unless the Will has been probated. Before financial institutions release the deceased’s funds, they will require the Estate Trustee to present them with the Certificate of Appointment of Estate Trustee.

Before it grants the Certificate, the court will want certain information, such as whether the Will (if there is one) is the deceased’s last will, the value of the deceased’s assets, and whether the individual sumitting the application is the appropriate person to receive the Certificate of Appointment of Estate Trustee.

The usual documents which must be submitted include a completed application form for a Certificate of Appointment of Estate Trustee with a Will; the original Will and any codicils; a draft Certificate of Appointment of Estate Trustee with a Will; an Affidavit of Service of Notice of the Application which states that the appropriate parties have received notice of the application; and an Affidavit of Execution of the Will and any codicils.

Before granting the Certificate of Appointment, the court will check its provincial database to see if any other Wills have been presented for the same person.

Depending on the complexity of the Estate, we can help.

After the Application for the Certificate of Appointment and other material have been filed with the court, and assuming the documents have been properly prepared and that the court does not require any other supporting documentation, it can take anywhere from 2 to 4 months to obtain a Certificate of Appointment of Estate Trustee.

Any debts which the deceased owed at the date of death become the Estate’s debts. The Estate Trustee is not responsible for the debts of the Estate unless he or she knows of those debts, including taxes, and distributes the proceeds of the Estate without first paying those debts.

It is recommended that the Estate Trustee advertise for creditors. The reason for this is that if a creditor comes forward after the Estate has been distributed, the Estate Trustee could be held personally liable for payment of the Estate debt.

However, if the Estate Trustee advertises for creditors properly, then the Estate Trustee is not liable for any debt owed to creditors which comes to light at some later date and of which the Estate Trustee was not aware.

The Estate Trustee will, in the normal course, pay all of the debts of the deceased which arose during the deceased’s lifetime, along with funeral expenses and taxes owed, before making any distribution to beneficiaries. It is prudent to “hold back” a portion of the estate assets to cover off taxes and other expenses that may be owing before making any distribution to the beneficiaries. An Estate Trustee may want to obtain an accountant’s advice on what the appropriate “hold back” is.