Ontario Rules on Estate Administration

When a person dies with a will in Ontario, what happens?

The will usually names executors. In Ontario, executors are called estate trustees with a will. They have authority to deal with estate matters. In some cases, they may not need to probate the will.

What does probating the will have to do with estate administration?

Probating the will means the estate trustee applies to court and confirms the will.
Probate verifies who is in charge of the estate. This is important when dealing with bank accounts, privacy issues and paying the deceased’s bills and taxes.
Probate confirms who shares in the estate. This is important to know who gets to share. In Ontario, estate trustees must give written notice to everyone named in the will.
Probate proves the last will complies with all legal formalities. This is important before you start selling a house or car.
Probate disputes deal with challenges to the will or claims against the estate. These claims can come from spouses, former spouses, common law spouses, dependents, creditors, the tax department or disgruntled and disappointed relatives.

Why Wait for Probate?

Some of the above players’ claims have statutory time limits or deadlines. These can be six months after death or six months after probate is issued. In certain circumstances, the court can extend these limits.

You should always obtain legal advice before disposing of any estate assets.

What if the will is set aside by a judge? What if there is a more recent will? Don’t sell the house contents at an estate sale until you get legal advice.

Certificate of Appointment as Estate Trustee with a Will

In Ontario, there is no issuing of a probate certificate. Instead, a would-be estate trustee (or estate trustees) must apply for a Certificate of Appointment as Estate Trustee with a Will. Sure, it is a mouthful. It replaces the old term, Letters Probate. The court then signs and issues the certificate. Estate administration begins once this certificate is issued.

A court grants the Certificate. The executor is accountable to the court that confirmed the appointment. Executor administration is subject to court audit and supervision.

What if there is no will?

Ontario law sets out who can apply for a Certificate of Appointment of Estate Trustee without a Will. Only Ontario residents can apply.

Find the Right Estate lawyer

Not all lawyers are the same. Not all lawyers have the same approach to estate administration.

Administration can be complicated. It can take one to three years, or more. Estate trustees must, during this time, maintain financial records, pay bills, transfer assets, and obtain a final income tax clearance certificate.

You will need different legal assistance depending on the:

deceased’s financial circumstances
terms and complexity of the will
assets and tax issues in the estate
deceased’s family circumstances
work the executors can or wish to carry out themselves

You need to hire a lawyer with estate administration experience. You will want to know the range of services offered by your estate lawyer.

Ask these Questions before Hiring an Estate Lawyer

Find out if your estate lawyer can help you:

fully administer the deceased’s estate – start to finish
calculate the estate administration tax (EAT) or provincial probate taxes
obtain a Certificate of Appointment
find a tax advisor who understands estate tax issues
transfer or sell estate property
understand your fiduciary duties as a trustee
deal with disappointed beneficiaries’ claims
handle probate disputes or will contests
deal with a final distribution

Want to know more about estate administration? Download Ed’s Executor Essentials.

Read more about probate in these posts found at my firm’s blog:
Ontario Probate Taxes: New Rules for 2013
Why Executors Need Lawyers

About Ed

Edward Olkovich (BA, LLB, TEP, and C.S.) is a nationally recognized author and a Toronto estate lawyer and Certified Specialist in Estates and Trusts. Edward has practiced law since 1978 and is the author of seven estate books including Executor Kung Fu: Master Any Estate in Three Easy Steps. Visit his law firm’s website, mrwills.com, for more free valuable information. (c) 2013

Posted In: Executors, Probate On: November 4th, 2013

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