We all know about probate fees. Those pesky fees that must be paid to the government when we die.
But what does it mean when an executor has to ‘get’ probate. What does this mean exactly? For many, the process of probate is mysterious. This can cause anxiety and frustration for beneficiaries who are anxiously awaiting information and want to know when they will get their inheritance.
Getting Probate
In a nutshell, if the deceased left a Will, in Ontario ‘getting probate’ is the process of legally establishing the validity of a Will. In other words, the Court is asked to confirm that the Will before it is the Last Will of the deceased and to confirm the appointment of an Executor (now officially called an Estate Trustee). When an executor ‘gets’ probate, what they are actually getting is a certificate issued by the Court called a ‘Certificate of Estate Trustee with a Will’. This is the authority that an executor needs to administer the deceased’s estate.
If there is no Will, someone must apply to Court but for a ‘Certificate of Estate Trustee Without a Will’ (instead of ‘with a Will’). In this case, the process is to have the Court confirm the appointment of an Estate Trustee. The estate is distributed according to Ontario’s intestacy laws.
Is Probate Always Needed?
Not necessarily.
If there is a Will, whether or not the executor will need to apply for probate is determined by two factors: (1) the types of assets the deceased owned at his or her death; and, (2) the value of those assets. The executor will not be able to transfer certain assets to the beneficiaries without probate.
For example, if the deceased owned real property in Ontario, whether as the sole owner or as a tenant in common with someone else, probate is nearly always required before real property (or the deceased’s share of the real property) can be transferred to a beneficiary. There are a few circumstances where this can be done without probate but these are rare.
Similarly, if the deceased owned shares of a publicly-held corporation, probate will usually be required before the shares can be transferred. Again, there are a few exceptions.
To transfer assets held at a financial institution to a beneficiary, the Estate Trustee must satisfy the requirements of that institution. The maximum value of assets that may be transferred without probate varies with each financial institution. If probate is not required, the financial institution generally requires certain documents be signed before releasing such assets.
If the deceased did not leave a Will, having probate or a ‘Certificate of Estate Trustee Without a Will’ is almost always required before any assets can be dealt with or distributed.
Calculating Probate Fees
We can’t ignore those pesky probate fees. If an executor needs to apply for probate, probate fees are payable by the estate to the Court.
How much probate fees are owed depends upon the value of the estate. In Ontario, the fees (actually called ‘estate administration tax’) are $5 per $1,000 on the first $50,000, plus $15 per $1,000 of estate value over $50,000. There is no maximum.
Do I Need Probate?
If you have been named executor in a loved one’s Will or if a loved one has died without a Will and you would like to be the executor or estate trustee, make an appointment to meet with me today. We will review the estate and determine with you whether probate is needed and then help guide you through the process.
Reproduction of this blog is permitted if the author is credited. If you have questions or if you would like more information, please call us at 613 836-9915. This blog is not intended to be legal advice but contains general information. Please consult a lawyer or other professional to determine how the information in this blog might apply to you.
Blog posts pre-dated December 1, 2015 were originally published under Neff Law Office Professional Corporation.
