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What is probate?


Probate is the Court procedure for:

  • formal approval of the Will by the Court as the valid last Will of the deceased (if there was a Will); and
  • whether there is a Will or not, appointment of the person who will act as the executor of the estate.

Probate is the Court process that gives the estate trustee the authority to act on behalf of the deceased and administer the deceased’s estate.

Learn more about whether probate is required here.

How long does probate take in Ontario?

To file the application: it takes some time to prepare the probate application properly, but if you are diligent, the application can usually be prepared and filed within a week or two of you first contacting our firm.   Any delays that arise are usually from the time required to collect the necessary information (such as the value of estate assets) and to collect any necessary signatures and documents such as in intestacies, renunciations of anyone with an equal right to apply, and consents to your application.  Fewer third party signatures are required for ‘testate applications’ (with a will) and thus they often can proceed quite quickly.  Learn more about probate applications with a Will and without a Will in Ontario here.

From application to grant: once the application has been prepared and filed, it takes time for the Court to process the application.  The application must be filed in the Court where the deceased resided, so unfortunately you cannot simply choose to file in a faster Court.

The amount of time required varies widely depending on the Court where the application was filed.  The processing time in almost all Courts except Toronto have improved since COVID and are ‘less than 3 months’.  The processing time in Toronto has gotten much worse and is, frankly, shameful and a longstanding and massive failure of the government of Ontario to fulfill its duty to its citizens.  It often takes ‘more than 8 months’ for an application to be processed in Toronto.

Applications in Ottawa, Mississauga, and Brampton are usually processed in under 8 weeks.  Processing times vary for other Courts.  Smaller centers are not always faster.

To administer the estate:  Administration of the estate after probate is in the hands of the estate trustee.  The rough rule is that the executor has a year to administer the estate (for more, see estates law basics) and generally trustees should try to achieve as close to this as possible.  A trustee should not unduly or unreasonably delay any aspect of the administration of the estate.  More information about estate trustee inaction is found here.

However the actual time to administer the estate must take into account the extremely slow action of government that seems to be the norm in contemporary Canada.  In addition to the delays obtaining the Certificate of Appointment at the beginning, it can take 4-6 months to receive a clearance certificate from Canada Revenue Agency at the end.  In short, for many estates the government delay alone for these two steps can exceed one year even if the estate trustee is very diligent.

When is probate required in Ontario?

Probate is not always required, but most estates should be probated.

Probate is required when Court approval of the vesting of the assets of the deceased in the estate trustee is required – either to validate the will, or the choice of executor, and with respect to the executor, either because there may be a dispute about who it should be or because some beneficiaries are unable to consent on their own (for instance, people under disability including minors).

Many estates of “the first spouse to die’ do not require probate as all of their assets can pass readily to the surviving spouse.

Also, many very modest estates which are either insolvent (debts greater than assets) or have only very modest bank savings do not need probate.

If the estate includes real estate that does not automatically vest in someone like the spouse of the deceased through joint ownership, then probate will almost always be required.

Probate can sometimes be avoided for real property that has been held by the deceased for longer than 30 years. Known as the ‘first dealing exemption’ this is only available when the transfer is the first transfer into the land titles system, when there is a valid last will, the last will has not been probated, and probate will not be required for any other asset. If any other asset requires probate, then you must probate the entire estate including the real estate even if it would have qualified for the first dealing exemption.  When this route is available, the real estate can be transferred directly into the names of the beneficiaries or estate trustee.  Whether the first dealing exemption is available for a particular property is a specialized question of real estate law.  We do not practice any real estate law and you should consult a local expert.

You cannot avoid probate just because:

  • The estate is small,
  • All beneficiaries agree,
  • There is only one beneficiary, or
  • The only assets are bank accounts or investments.

If a financial institution (bank) where funds are held demands probate, then probate is required.  Financial institutions are not obliged to waived probate under any circumstances.  Some banks occasionally waive probate for small estates when there is no obvious conflict among beneficiaries.  This is entirely at the discretion of the financial institution, and if they refuse in your circumstances the solution is not to argue – it is to probate immediately.  If the financial institution agrees to waive probate, the beneficiaries will be obliged to sign ‘indemnities’, agreeing to indemnify the bank from any claims.

When should you file the probate application?

The sooner the better.  Delay assist no one.  While a little time to grieve and gather facts is entirely appropriate, lengthy delay simply costs money and creates stress.

If the named executor or other person entitled to apply as the estate trustee does not do so within a reasonable period of time – and certainly within one year of the death – then beneficiaries can and should take steps to protect their interests so that their rights are  not negatively affected by the unduly slow estate trustee.

 

Should you hire a lawyer to help with probate?

You are not required to hire a lawyer to probate an estate but it is usually advisable.

It is possible to ‘file the application yourself’. However, dealing with the courts and the required paperwork is a complex and confusing process.

Inexperience causes rejected applications (most self-filed applications are rejected at least once), and this causes significant delays.  Delays cost money and cause stress. Of particular significance now that interest rates have increased is the lost income and interest expenses borne by beneficiaries as a result of any delay probating or administering the estate.

A properly prepared application can reduce the time for processing, and thus reduce both costs and stress.

If the actions of the estate trustee are likely to be challenged or closely scrutinized (for instance by a sibling who is a beneficiary but not a co-executor), then we strongly recommend that you seek professional assistance with probate and all other aspects of the administration of the estate.

How much does probate cost?

The “costs to file” a probate application are really several completely different sets of expenses:

  • Estate administration tax (“probate tax”), which varies depending on the size of the estate (use our calculator here)
  • The costs of preparing and filing the application, including the fees of a lawyer or any other person that assists you (our fees for probate applications are described here). Depending on the circumstances, you should anticipate costs for searching for a will (including advertising), serving potential beneficiaries and people entitled to apply to be the estate trustee, costs of preparing consents, and
  • Costs of securing any bonds or sureties, if required.

Of course, as a general rule, all of these costs are ultimately borne by the estate before any distribution to beneficiaries and not by the executor personally.

Our probate fees are described here, and include a calculator for immediate no-obligation quotes.

Terminology

While the term ‘executor’ is widely used in wills and estate planning, in Ontario the correct term for Court purposes is ‘estate trustee’.

As a result, in Ontario, the formal legal term is actually ‘appointment of the estate trustee’ rather than ‘probate’ or ‘probate of a will’.

Depending on whether or not the deceased had made a will, the appointment will be either ‘estate trustee with a will’ or ‘estate trustee without a will’.

Similarly, formally Ontario does not have ‘probate fees’ or ‘probate tax’. These are now known as ‘estate administration tax’.

 

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