We advise trustees/executors and beneficiaries in obtaining certificates of appointment of an estate with a will or without a will, formerly known as probate applications. We assist with the classification and distribution of assets under a Will, including advice on filing tax returns, advertising for creditors and the passing of accounts, which generally concludes administering the estate. We guide you to the very end of the estate administration process.
Probate is the formal court process that legally confirms an executor’s authority to act on behalf of the deceased. Through the probate process, the court will approve the Will of a testator and formally recognize it as their last will and testament, and then will appoint the person who is to act as Executor or Administrator of the estate. The Executor can then access and secure the estate’s assets. The probate process in Ontario commenced through an Application for a Certificate of Appointment of Estate Trustee.
Not all executors will need to apply for a Certificate of Appointment. However, probate is usually obtained where Court approval is needed to validate a Will or the chosen executor because of a dispute about who it should be, or where proof of an executor’s authority is required by third parties, like financial institutions, or where the estate includes a land transfer, as land registry offices will require probate to transfer title in land.
Probate costs come out of the estate before any assets are distributed to the beneficiaries.
The formula for calculating the amount of tax is set out in the Estate Administration Tax Act, 1998. If a Certificate of Appointment of Estate Trustee is applied for on or after January 1, 2020, the amount of Estate Administration tax is:
Probate fees can be significantly reduced, and sometimes avoided altogether through proactive and tailored estate planning.
When a person dies, all of their assets and property (ie: their estate) must be organized and distributed under the terms of that person’s will. Where there is no valid will, the estate will be distributed based on the intestacy rules in the Succession Law Reform Act 1990, which lays out a strict hierarchy of who is entitled to what. Here is a brief comparison of the intestacy laws in Ontario:
|Without a Will||With a Will|
|How is your estate distributed?|
Your estate will be divided between your spouse (if you are legally married) and your children, in accordance with a formula established in Part II of Ontario’s Succession Law Reform Act 1990: If the deceased had no children, the surviving spouse inherits all the deceased’s property.
If the deceased had one child and a spouse, the surviving spouse inherits the first $200,000 and the balance is divided between the spouse and the child.
If the deceased had more than one child and a spouse, the surviving spouse inherits the first $200,000 plus one-third of the remining assets. The remaining two-thirds is then divided equally between the surviving children.
If you are unmarried and have no children, your Estate will be inherited by your parents.
If your parents have predeceased you, your surviving siblings will inherit your estate.
If you have no surviving siblings, your Estate will be inherited by your nieces and nephews.
Finally, if you are not survived by any nieces and nephews, your Estate will be divided between your next of kin.
Subject to any obligations you may have to your dependant children or spouse, you can divide your Estate however you want in your Will. Spouses also have significant property rights against your Estate under Part I of the Ontario Family Law Act (FLA) that could supersede the provisions of your Will, particularly if your Last Will does not adequately provide for your spouse.
According to section 6 (1) of the FLA, when a spouse dies leaving a Will, the surviving spouse can elect to take under the will or to receive the entitlement s/he has to equalization of net family property under Section 5 of the FLA.
|Who will administer your estate?|
If you are legally married, your spouse and all of your children have the first right to manage your estate.
You can name anybody to administer your estate, including a friend, advisor or institution.
|What will happen to my assets?|
If you beneficiaries can’t come to a resolution about a property, the court may order that it be sold.
You can determine who gets what and impose conditions as you see fit. You can also leave it to one person during their lifetime and to another after that person dies or moves out.
|What will happen to the assets bequeathed to minor beneficiaries?|
The money will go directly to the beneficiary, or to their parent/guardian if they are minors or unable to manage their own affairs. The funds cannot be managed in a trust without court approval.
You can establish a specialized trust to be managed and paid out to your beneficiaries in a responsible manner, as you may decide. You can structure affairs to maximize social assistance and disability benefits for your beneficiaries.
A child who inherits and is of the age of majority is free to receive and spend their share as they desire.
You decide at what age your children will receive all or a portion of their inheritance, according to what you feel is in their best interest.
An Estate Trustee cannot act until a Certificate of Appointment has been granted by the Court; the assets cannot be used in the interim.
The Estate Trustee/Executor is granted authority from the Will.
A will names the individual(s) responsible for overseeing (i.e. administering) the winding up of the testator’s estate. This individual is known as the executor. There can be more than one executor. The named executor(s) must apply to the court for a Certificate of Appointment as Estate Trustee with a Will. Once the court is satisfied that the Will is valid, a certificate of appointment of estate trustee with a will is issued by the court that proves the authority of the estate trustee to administer the provisions of the deceased's Will.
Where there is no will, someone (usually the surviving spouse) must be appointed by the court to administer and distribute the estate as executor. If there is no spouse, or if the spouse is unable or unwilling to act in this capacity, another family member can apply to do so. If there are no eligible family members, another person may apply to become executor, for instance a close friend, a lawyer, or the Public Guardian and Trustee. The court will grant a Certificate of Appointment of Estate Trustee without a Will, which gives the designated individual the authority to manage and distribute the estate in accordance with applicable intestacy rules.
An executor is an individual appointed in a Will to carry out the terms and directions of that Will, and a trustee is an individual who has been appointed to hold the property in a trust for the benefit of any beneficiaries of that trust. More often than not, an executor or trustee has never acted in such a capacity and does not necessarily understand the importance of this function, as well as the many risks that they face.
An executor owes a fiduciary duty to the beneficiaries of the estate they are administering. An executor must act with integrity and good faith at all times and make decisions in the best interest of the beneficiaries.
We help understand and fulfill your duties and obligations as executor or trustee. In particular, matters we advise on include: Reviewing and interpreting the will, locating and valuating assets, identifying beneficiaries, obtaining probate, dealing with bank accounts, insurance policies, and investments, seeking court approval and advice, where necessary, communicating with beneficiaries and preparing a statement of account.
An Estate Trustee (formerly known as an Executor) of an estate has a great deal of responsibility for administering the estate that appointed him/her. Administering an estate is done with care and in accordance with the deceased’s wishes and the law.
The winding up of an estate generally involves carrying out the terms of a last will and testament, paying debts and taxes and distributing the residue of the estate to the beneficiaries. Such steps include:
If necessary, a court-sanctioned “passing of accounts” can formally conclude the administration of an estate. Due to the extensive duties and obligations of an estate trustee, it is advisable to consult a lawyer to assist with the process.
We provide legal opinions on a variety of estate related matters. We can also help obtain probate orders in Israeli courts. We provide legal opinions to Canadian courts on Israeli law and legal opinions to Israeli courts on Canadian law.
The general information on this page is not applicable to any specific case and is intended for information purposes only. It is not a substitute for legal advice and may not be relied on as such. Readers are expressly advised to consult with a qualified lawyer for advice regarding their specific circumstances and entitlements under Ontario law.
Contact us to discuss your case and obtain personalized legal advice relevant to you.