What is Probate in Ontario?
A comprehensive look at what probate is and how it works in Ontario.
Probate refers to the judicial procedure necessary for the verification and administration of a deceased person’s will. It involves judicial affirmation of the will’s validity, ensuring the testator’s death, and confirming the will’s authorship by the deceased person. In instances where the deceased did not formulate a will, the probate process appoints a representative to oversee the deceased’s estate.
Probate Process in Ontario
The probate process in Ontario requires executors to apply to the provincial court for a Certificate of Appointment of Estate Trustee With or Without a Will. This certificate was previously known as Letters of Probate and grants the executor legal authority over the estate’s administration. Executors must present this application to initiate the probate process formally.
After obtaining the certificate, executors must file an Estate Information Return with the Ontario Ministry of Finance within 90 calendar days. This return functions as a detailed inventory, listing all of the deceased’s assets alongside their respective values on the date of passing.
Assets Subject to Probate
The probate process applies primarily to assets held solely in the deceased person’s name. Such assets can include real estate holdings, individual bank accounts, investments, and personal property owned outright by the deceased person. The process mandates the assessment of only these individually held assets.
Jointly owned assets accompanied by a right of survivorship do not fall under the probate process. Similarly, financial instruments such as Registered Retirement Savings Plans, Registered Retirement Income Funds, and Tax-Free Savings Accounts with appropriately designated beneficiaries bypass the probate proceedings. Additionally, proceeds from life insurance paid to named beneficiaries and assets placed in trusts during the person’s lifetime are also excluded from probate.
Probate Fees in Ontario
Within Ontario, the Estate Administration Tax is imposed as part of the probate procedure, previously called probate fees. This tax is determined based on the estate’s total monetary value, equating to approximately 1.5% of the calculated estate value.
Valuation of Assets
It is incumbent upon the executor to procure unbiased professional appraisals for the estate’s assets as they stood on the date of death. Particular emphasis is placed on acquiring precise valuations for notable assets, including real estate holdings and business-related assets, ensuring impartial and accurate valuation standards are met.
Time Frame
The duration of the probate process is subject to variation, typically ranging from a period of six weeks to potentially extending beyond twelve months. The complexity inherent in the estate often influences this duration. Moreover, any challenges lodged against the will further prolong the probate process.
Legal Requirements
Under the judicial system’s supervision, the probate process involves several important steps, including asset collection, resolution of outstanding debts, and eventual distribution in agreement with the will or as directed by the Ontario Succession Law Reform Act in the absence of a will. These sequential steps ensure procedural compliance and equitable distribution across all stakeholders.
International and Interprovincial Assets
Assets situated outside Ontario necessitate probate proceedings that are compliant with the jurisdictional laws governing those assets. Executors often coordinate closely with other appointed executors, abiding by the regulatory frameworks and requirements established by those respective jurisdictions for asset management and distribution.
Role of the Executor
The executor, alternatively referred to as the estate trustee, shoulders numerous responsibilities vital to estate administration. These include accurately identifying and cataloging all assets contained within the deceased’s estate, securing unbiased professional appraisals, filing necessary legal documents, and reporting to tax authorities. Executors must also ensure the alignment of asset distribution with the designated will or abide by applicable legal statutes when no will exists.
Updates
As of 2015, executors must submit an Estate Information Return within a span of 90 calendar days following the acquisition of the Certificate of Appointment. Executors may be audited and face penalties if they do not comply with this requirement.
Professional Help
While hiring a lawyer during probate is not legally required, it is advisable. Legal professionals provide support in managing documentation, ensuring adherence to procedural laws, and representing executors in court if and when required.