This is the probate process in Ontario that occurs after someone dies. This includes probating the deceased’s will and distributing their assets by their express wishes. Probate in Ontario is the legal process involved in dealing with a deceased person’s Estate; it can be complicated, but knowing the steps to take, the duties involved, and the associated costs can help executors carry out the affairs of the Estate in an effective manner.
We will cover everything you need to know about the Ontario probate process, from filing your first application to distributing the assets.
How the Ontario Probate Works — A Step-By-Step Procedure
The Ontario probate process begins when a will is probated by an executor or administrator before the court. It’s a process that helps ensure the deceased’s assets are distributed according to the law. Here’s a step-by-step guide on how to do it:
Validate the Will: The first step is to validate the will. If the deceased person had a valid will, the executor named in the will must open the probate estate. If a will does not exist, the court will assign an administrator to manage the Estate. The probate process in Ontario is essential for ensuring this happens correctly, just as the Power of Sale or the eviction process in Ontario requires clear steps for enforcement.
Probate Application: The executor will file a probate application with the Ontario Superior Court of Justice to commence the probate process. This is done by submitting the original will, a death certificate, and an application form.
Receive the Grant of Probate: If the application is approved, the court will issue a grant of probate, which means the executor has official authority to begin settling the Estate.
Administer the Estate: The executor next takes ownership of the decedent’s property, settles debts, and ensures that any taxes due are paid.
Distribution of Assets—Once all bills are settled, the remaining assets are distributed according to the will. Without a will, the assets are divided under Ontario’s intestacy laws.
An Executor’s Guide to the Ontario Probate Process
Assuming an executor’s role in Ontario’s probate process is a pivotal position. Executors owe a fiduciary duty to act in the best interests of an estate and its beneficiaries. Here’s a rundown of what they primarily do:
Finding the will and applying for probate: Executors need to find the will of the deceased and submit the probate application in court.
Administration of the Estate’s assets: Executors are responsible for gathering all of the deceased’s assets—real Estate, bank accounts, personal property, and so on—and caring for and protecting them until probate is completed.
Settling Debts and Pay Taxes: Executives should settle any debts or taxes from the Estate. This is the filing of income tax returns for the deceased and the Estate.
Distributing the assets: After all debts have been cleared, the executor must distribute the assets left over to beneficiaries according to the terms set out in the deceased’s will or as outlined in Ontario’s intestacy laws.
Maintaining Accurate Records: Executors are responsible for tracking all transactions related to the Estate so that beneficiaries can see how the Estate has been handled.
Ontario Probate Application Process: Step-by-Step Guide
Probate applications in Ontario consist of multiple legal procedures that must be carefully followed. Here’s a breakdown of how to apply for probate:
Getting Necessary Documents Together: The initial step of a probate application is submitting the required documents. These would include the original will, death certificate, application for a certificate of appointment of estate trustee with a will (Form 74.4), etc.
File the Application: The executor files the documents with the Ontario Superior Court of Justice. An estate information return, which gives the court information about the assets and liabilities of the Estate, should be part of the application.
Get Court Approval: The application and relevant documents are submitted to the court for approval. The court reviews the documents submitted and may ask for further information. Once the court is satisfied, it grants probate, giving the executor authority to administer the Estate.
The Grant of Probate: Once the court issues probate, the executor can begin the estate administration. They are now legally empowered to sell assets, settle debts, and allocate property.
Ontario Estate Fees Explained: What You Need to Pay
In Ontario, fees are associated with the probate process that must be paid as part of your application. These fees are assessed against the value of the Estate’s assets. Here’s a look at the key probate costs:
Estate Administration Tax: The main probate tax in Ontario is charged at a rate of 1.5% on the Estate’s value above $50,000. The tax rate for estates worth $50,000 or less is 0.5%.
Extra Fees: Besides the estate administration tax, other fees are involved in the probate process, including legal fees, filing fees, or fees to appraise the deceased’s assets.
Fees Payment: The Estate has to pay these fees, and the executor should have sufficient money. Though in some circumstances, executors can petition the court for a waiver or reduction of the fees, these requests are seldom approved.
List of Documents Required for Probate in Ontario
In the Province of Ontario, the executor must submit numerous documents when applying for probate. This information allows the court to evaluate the will’s authenticity and ensure a seamless Ontario probate process. Here are some of the important documents you need to facilitate the probate process in Ontario:
Will (Original): The original will be presented before the court. If the decedent had several wills, the most recent must be filed.
Death Certificate: A certified copy of the death certificate is needed to prove that the person has died.
Application for Probate: The executor must complete and send a request form (Form 74.4) to the court detailing their request for probate, including information on the Estate.
Information Return for Estate: This return shows all the assets and liabilities in the Estate, which helps us calculate the probate fees.
Affidavit of Service: The executor has notified all interested parties (beneficiaries or creditors) of the probate application.
Timeline of the Ontario Probate Process: How Long Does It Take?
It is important to note that the probate process in Ontario is not quick. How long it takes can vary with the complexity of the Estate and if there are any challenges to the will.
Probate usually takes between 6-12 months on average. However, it may take longer if:
The Estate is complex: If the Estate includes several properties, businesses, or complex assets, the probate process may take longer.
There’s a Dispute: Questions about the will’s validity or disagreements between beneficiaries can slow the probate process.
Missing Documents: The process may be extended when the executor does not file all required documents or the court needs additional information.
Tips and strategies on how to Reduce probate fees (also known as estate administration tax fees) in Ontario
The estate administration tax is unavoidable, but you can reduce probate fees in Ontario. Here are some techniques to help you achieve this:
Gifting Assets Before Death—Reduce the Value of Estate: A strategy available to reduce the Estate’s value is gifting assets to beneficiaries before death. This might help reduce the value of the Estate, which would lower the probate fees.
Asset Ownership: If assets are held in a joint name with a beneficiary, the joint owner is entitled to inherit the asset automatically without going through probate, which will avoid probate fees.
Other Beneficiaries: Some life insurance policies and registered accounts (RRSPs, RRIFs) may also have specified beneficiaries. These assets pass outside of probate and are not subject to probate fees.
Set Up a Trust: A trust allows the direct distribution of assets to beneficiaries without
requiring them to go through the Estate or probate like a will would.
Mistakes to Avoid with the Ontario Probate Process
Navigating the probate process can be challenging, and there are many common mistakes that executors should strive to eliminate. Here are some common mistakes:
Not Identifying All Assets: Executors must account for all of the Estate’s assets, including real Estate, bank accounts, investments, and personal property.
Such delay for probate application: The probate process should be initiated timely. If debts are to be paid off in the Estate or in the case of closing accounts, timely action is imperative.
Failing to Account for Tax Liabilities: Executors should make sure any taxes owed by the Estate are paid in full and on time to avoid penalties.
Mismanagement of Estate Assets: Executors manage the Estate’s assets, ensuring they are preserved and not wasted during the probate process.
What Is Considered Probate Property In Ontario?
Not all assets are subject to probate in Ontario. The following types of assets usually do pass through probate:
Assets Held in Joint Ownership: Jointly held assets go directly to the surviving joint owner, skipping the probate process.
Designated beneficiaries: Life insurance policies, registered retirement accounts, and certain other financial products with registered beneficiaries don’t have to go through probate.
Property Inside a Trust: Property held by a trust is not included in the Estate and, therefore, not subject to probate.
The Ontario Probate Court process explained how to work through it smoothly.
The Ontario probate court process must be navigated in an organized and detail-oriented manner. Executors should:
Have Your Papers in Order: Ensure all slides submitted to the court are accurate and ready.
Consult an Attorney: If necessary, professional help could be sought to ensure the appropriate preparation and filing of the probate application.
Inform Beneficiaries: Update the beneficiaries on the probate progress to prevent misunderstandings or disagreements.