The Probate Process: What to Expect in Ontario

11 Jun The Probate Process: What to Expect in Ontario

Probate is the court process in Ontario law that validates a deceased person’s will and authorizes the executor to manage and distribute the estate. This process confirms the will’s validity, makes the will public, and involves paying an Estate Administration Tax based on the estate’s value. Probate is typically necessary to transfer assets form an estate, but there are exceptions, such as when the asset is jointly held with a right of survivorship, or if the asset is under a threshold value or if a secondary Will was executed dealing with assets that do not require probate.

Initiating the Probate Process

Initiating the probate process in Ontario involves several steps. First, the executor in the will must file an application with the appropriate Ontario court. This application includes the original will, a death certificate, and a detailed inventory of the deceased’s assets. The executor must also provide an estimate of the estate’s value to calculate the required Estate Administration Tax. Once the application is submitted, the court reviews the documents to verify the will’s validity and, if approved, issues a Certificate of Appointment of Estate Trustee with a Will, granting the executor legal authority to manage and distribute the estate’s assets.

Evaluating the Deceased’s Assets

Evaluating the deceased person’s assets is a crucial step in the probate process, involving a thorough assessment and valuation of all assets owned by the deceased at the time of death. This includes tangible items such as real estate, vehicles, jewelry, and other personal property, as well as intangible assets like bank accounts, stocks, and bonds. The executor is responsible for determining the fair market value of these assets, often requiring professional appraisals for accuracy. This valuation not only forms the basis for calculating any applicable Estate Administration Tax but also helps in the equitable distribution of the estate according to the will’s directives.

Filing the Application for Probate

Applying for probate in Ontario is a detailed process that formally starts the administration of a deceased person’s estate. The executor must complete several forms, the most critical being the Application for a Certificate of Appointment of Estate Trustee with a Will. 

Once all forms and supporting documents are correctly filled out and gathered, the executor files them with the Superior Court of Justice in the jurisdiction where the deceased lived. After reviewing the application, if the court finds everything in order, it will issue the Certificate of Appointment of Estate Trustee with a Will, authorizing the executor to manage and distribute the estate settlement.

Distributing Assets to Beneficiaries

Distributing assets to beneficiaries during the probate process involves several key steps. First, the executor must settle all outstanding debts and obligations of the estate. Next, certain assets may need to be liquidated to fulfill specific bequests or pay debts. Assets are then transferred directly to beneficiaries according to the will’s instructions. 

Dealing with Estate Taxes and Income Tax

Dealing with estate taxes and income tax during probate involves several important responsibilities for the executor. First, the Estate Administration Tax must be calculated based on the deceased’s total asset value and paid upon filing for probate in Ontario. The executor must also file the deceased’s final income tax return, covering income from the beginning of the year until the date of death. Before distributing assets, the executor should obtain a Clearance Certificate from the Canada Revenue Agency to ensure all taxes have been settled. These steps ensure legal compliance and protect the executor from liability.

Dealing with Contested Wills or Disputes

Handling contested wills or disputes during probate involves the executor defending the will while remaining neutral among beneficiaries. Disputes are often resolved through mediation or negotiation to avoid costly litigation. It’s essential for all parties to seek legal advice and for the executor to ensure clear communication. This process helps uphold the deceased’s intentions and manage disputes efficiently, keeping legal and emotional complexities in check.

Closing the Estate and Finalizing the Probate Process

Closing an estate and finalizing the probate process involves several key steps. First, the executor must ensure all debts and taxes are paid, often requiring a Clearance Certificate from tax authorities. Next, assets are distributed to the beneficiaries according to the will. The executor then prepares a final accounting of the estate’s finances for approval by the beneficiaries, who may need to sign release forms. Finally, the executor files any necessary documents with the probate court to officially close the estate and is formally discharged from their duties. This process requires diligent record-keeping and strict adherence to legal procedures to effectively conclude estate management.

Stewart Esten Wills & Estate Law

We understand that everyone’s estate planning needs are unique and not all topics were covered in this article. Stewart Esten has been managing our clients’ wills and estates since our founding in 1871. Our team of family lawyers and business lawyers is available to draw upon, so regardless of how complicated your estate planning may be, we have the solutions.

Reach out to us today to learn more.