How To Probate A Will
If you’ve been named executor or trustee of an estate and aren’t sure where to start, you’re not alone. Managing an estate can be a complicated duty with numerous tasks to take on. However, even if you’ve never been responsible for administering an estate, you’ve likely heard some of the terms associated with being an executor—words like probate, estate administration, and beneficiaries.
Although these words are used frequently, people often misunderstand them.
The probate process alone might seem confusing or overwhelming. Here, we provide information on what it is and what you need to do to probate an estate.
What does probate mean?
First, it’s important to understand what probate is. When someone dies, they may have assets they own that need to be given out to their beneficiaries. They may also have debts that must be paid. Probate in Canada is the process through which the court grants you the authority to act as an estate trustee (also commonly referred to as an executor) and take care of the deceased’s assets and debts.
Probate has different names in different provinces
Different provinces have different names for the probate process. For example, Ontario previously used the phrase Letters Probate but now uses the term Certificate of Appointment of Estate Trustee. British Columbia still uses the term Letters Probate.
The Certificate of Appointment of Estate Trustee is needed when there are organizations or businesses that require proof you are legally authorized to manage an estate’s assets. In such cases, those institutions may not recognize your authority and won’t transfer the assets to you to be distributed among the estate’s beneficiaries without that certificate provided by the court.
Institutions that might require the certificate include banks, insurance companies, mortgage holders, and credit unions.
Obtaining the required court documentation shows those institutions that you have the court’s authority to distribute the deceased’s assets. Once you have it, the institutions can then transfer the assets to you (or more specifically, to the estate) for distribution.
How is probate different from estate administration?
Often, people say they are probating a Will when they mean they are managing estate administration. Obtaining the court certificate is just one step in the administration process. As a trustee, your role in administering the estate can involve everything from determining the value of the estate to filing the final income tax return to closing credit card accounts and distributing the estate’s assets.
When would I need to file for probate?
Probate happens early in estate administration because it is often necessary before other steps can be taken. It isn’t always needed, however.
Whether you need it depends on if the deceased had a Will; the type of assets they held; and whether various institutions require probate to transfer ownership of the deceased’s assets.
If there is a chance someone will contest the Will—for example, a family member claims the deceased didn’t have the capacity to write the Will before they died—applying for probate gives the court the opportunity to determine whether the Will is valid. If there are multiple Wills, there may be some questions about which of the Wills is valid. The court can determine that, as well.
Whether the deceased had a Will
If they did not have a Will, you must apply for a Certificate of Appointment of Estate Trustee Without a Will. The court must determine if you are eligible to act as the executor before distribution can begin.
If they had a Will and named you executor, you may be able to avoid probate, depending on the deceased’s assets and whether the various institutions require probate.
If they had a valid Will but did not name an executor, you need to apply for probate before executing the estate. Additionally, if there is any dispute about who should act as executor or whether the Will is valid, you are required to seek probate.
In other words, if there is nothing naming a trustee, the person wanting to be executor must obtain probate. If there is a valid Will with a named trustee probate might still be required but could be avoided. The person named will need to gather information and possibly obtain legal advice to determine their next steps.
The types of assets the deceased owned
The types of assets they owned plays a role in whether you need to file for the certificate. Certain assets do not require probate. For example, jointly-owned real estate that automatically transfers to another person through the right of survivorship does not need probate. Real estate that doesn’t automatically pass through the right of survivorship likely requires probate.
Any assets that have joint ownership and have a right of survivorship, financial assets that have a named beneficiary (such as RRSPs, RRIFs, and TFSAs), and gifts made during the deceased’s life can end up in the hands of a beneficiary and are not reliant on the probate process.
If they had assets, such as bank accounts that do not have a right of survivorship, you may need probate.
If they owned even one asset that requires probate, then you must file for it. The only way to avoid probate entirely is if none of the assets require it.
Whether the financial institution requires probate
Not all financial institutions always need proof that you are authorized to act as the estate’s trustee. Even the same institution or bank can have different rules in different provinces or between branches in the same province. Whether probate is required often depends on the size of the bank account or the size of the estate.
It’s best to speak to each financial institution and bank to determine whether they require a certificate. They can let you know the type of account and whether they’ll need to see the certificate before transferring assets to you.
How do I probate a Will?
Before you request the certificate, you need to determine if probate is required.
First, determine whether there is a valid Will
If a Will is not easily found (for example, in a safe or safety deposit box), ask trusted advisors or friends to find out if they know whether the deceased wrote a Will and where they kept it. Although there is no mandatory central registry of Wills in Ontario, you can look at an online Will registry service to see if they registered a Will.
You can also check with the estates department for the Superior Court of Justice in the region the deceased lived to find out if they registered a Will there.
If you cannot find a Will, you can check with the Superior Court of Justice’s civil office to find out if anyone has filed for a Certificate of Appointment of Estate Trustee in the province.
Ontario has rules regarding who can be a trustee if you can’t find a Will or if the Will doesn’t name an executor. The person applying must live in the province. The priority of trustee is generally given first to the deceased’s spouse, then the common-law partner, and then the children. Each of the provinces may have its own rules about who can be a trustee.
The court can only issue one certificate for an estate. If more than one person applies, the court will determine who is eligible to be the trustee.
Second, determine whether there are assets that require probate
If you get lucky, they will have kept a list of all of their assets. Without that, you can expect to do some digging. Once you figure out what property, investments, and assets they owned, you can start to determine which financial institutions and other organizations to reach out to.
If there is no Will, it can be a long undertaking to determine what accounts the deceased had when they died and where they were held. This can include going through mail and paperwork, looking for bank cards, and speaking to trusted advisors. You may have to contact individual banks to find out about any accounts with them.
Third, collect any materials and fill out any forms needed to file for an estate certificate
- The original, valid Will (if there is one)
- Additional paperwork that changes or revokes any part of the Will
- Proof of death (for example a death certificate or a court order)
- Any necessary court forms that are related to the deceased’s assets or beneficiaries
Fourth, apply for the certificate
An important step as trustee is to provide notice to the beneficiaries that you are applying for the certificate. This gives each beneficiary an opportunity to speak up if they have concerns about the probate process including contesting the person applying for the certificate
When you submit your application, you may be required to pay the Estate Administration Tax. This tax (known before as the Probate Fee) is based on the total value of all assets the deceased owned at the time of their death that are part of probate.
- Bank accounts
- Real estate and property in Ontario
- Business interests
- Insurance (not given to a beneficiary)
- Intangible property
In Ontario, the Estate Administration Tax is around 1.5% of the estate’s value above $50,000. If the estate is valued at less than $50,000, no fees are charged. If you cannot afford the Estate Administration Tax, you can request to pay the fees once probate is complete and you have access to the estate.
How long does it take to probate a Will?
The time it takes to probate a Will varies across Canada. It also depends on whether someone challenges the Will while it’s going through the process. Typically, you can expect it to take between six and eight months—more time if anyone challenges either your eligibility to act as executor or the Will’s validity.
What do I do after I receive the certificate?
If you are successful in receiving the estate certificate, you can then start managing the estate. Depending on your province, there may be some additional documents that need to be filed. For example, in Ontario the executor is responsible for completing the Estate Information Return within 180 days of receiving the certificate.
As executor, you’re responsible for distributing the estate’s assets to each beneficiary either according to the Will or according to the laws of the province the deceased lived in. You are also responsible for protecting the assets and you need to pay all debts and taxes.
Although there are some scenarios in which an estate doesn’t need to go through probate, there are many in which it is required. The process validates your ability to act as an estate trustee, which enables financial institutions to transfer assets to you so you can distribute them to beneficiaries, pay any fees or costs, and complete all other required activities.
The laws regarding probate vary between provinces and can be complex. If you have questions about probate or applying for a Certificate of Appointment of Estate Trustee, consider speaking with a lawyer, who can answer your questions, provide legal advice, and help you through the process.
Even though managing an estate can be complicated, writing a Will doesn’t have to be. Consider creating a comprehensive Will using Epilogue’s platform. The process is easy to understand and can be completed in as little as 20 minutes.