Ontario Probate Mysteries Explained

Are you an executor or estate trustee in Ontario?

Probate is a mystery. I’ll try to explain it in this post.

Executors want to see the light at the end of the tunnel. You want to know how long it takes to probate an estate. These are natural questions to ask as you get started. You want to know how to plan the rest of your time.

Will probate affect your summer vacation plans or next winter’s escape to Florida?

The correct answer will depend on the difficulties in the estate. You can experience problems because of three factors.

Factor #1 The People Involved

You must consider variables such as:

• How many beneficiaries are named in the will?
• Are they happy with the terms of the will?
• Are there creditor’s claims?
• Do you need cooperation from everyone?

Factor#2 The Type of Estate Assets

These asset variables may affect timing:

• Real estate that must be sold
• Business assets may need to be liquidated
• Special assets that are difficult to appraise or sell

Factor #3 Legal Issues

Legal problems can arise at the outset. Lawsuits can be filed within two years of a person’s death.

• Are the will terms clear or must you ask a court to interpret them?
• Is anyone threatening to challenge the will?
• Are there individuals who have legal or moral claims to the estate?

Ontario Probate Process

Here is what I frequently tell clients:

• Probate is the legal process to handle a person’s affairs after death
• The executor (or estate trustee in Ontario) is a person with legal authority to represent the person’s estate
• The original will must be filed with the estate court
• Probating a will is legal work best performed by an experienced estate lawyer
• Documents are filed with the court to establish the validity of the last will
• An application for a Certificate of Appointment of Estate Trustee (with or without a will) is prepared
• The original will and a value of the estate probate assets are filed with the court
• The provincial estate administration tax (“EAT” or probate tax) is based on the probate assets
• The tax is paid when the court filing is made
• Some assets are not included for probate. Non-probate assets may include the following:

* Jointly owned property

When one owner dies, the surviving joint owner may automatically become the sole owner of the property. I say ‘may’ because joint assets are now frequently the subject of lawsuits. Read more about this in my posts:

Joint Property Owners: Secret Severances Can Steal Your Inheritance

Jointly-Owned Property Sparks Estate Lawsuits: Will You Be a Victim?

* Life insurance proceeds

A designated beneficiary could receive the life insurance proceeds or annuity directly. The proceeds would not be controlled by the estate trustee or subject to probate tax.

* Registered retirement accounts

RSPs, RIFs and pensions may have designated beneficiaries. The owner of the account must designate a beneficiary other than his or her estate. This would not be a probate asset.

* Trust Assets

If these assets are not held in the deceased person’s name, they are not to be included.

• The Ontario government amended the Estate Administration Tax effective January 1, 2013.
• The government has not passed regulations to explain any new rules to implement the legislation. It is not likely regulations will be passed until after the next provincial election.
• It is still a mystery what other assets may be included for probate.

About Ed

Edward Olkovich (BA, LLB, TEP, and C.S.) is an Ontario lawyer, nationally recognized author and estate expert. He is a Toronto based Certified Specialist in Estates and Trusts. Edward has practiced law since 1978 and is the author of Executor Kung Fu: Master Any Estate in Three Easy Steps. © 2014