One question I get asked time and time again is ‘What is probate?’. Most people are familiar with probate fees but many aren’t really sure what probate is and when it is needed.
As I explain to clients at my law office in Ottawa near Kanata-Stittsville, probate is actually the process of legally establishing the validity of a Will. When we say that a Will has been probated, we mean the Court has confirmed the appointment of an Executor or Estate Trustee and that the Will has been accepted as the last valid Will of the deceased. The Executor is the person who administers and distributes the estate (and usually any trusts in the Will) of the deceased person.
An Executor may be appointed with or without a Will. If there is a Will, the Court issues a ‘Certificate of Estate Trustee with a Will’. If there is no Will, the Court issues a ‘Certificate of Estate Trustee Without a Will’ and the estate is distributed according to Ontario’s intestacy laws. When a person dies without a Will, they are said to have died “intestate”.
I’m an Executor…How will I know if Probate is Needed?
If there is no Will, having a Certificate of Estate Trustee Without a Will issued will be required before the deceased’s assets can be dealt with or distributed. Although the term ‘probate’ isn’t correct when there is no Will, it is often used to refer to a Certificate of Estate Trustee with or without a Will.
If there is a Will, whether or not probate will be needed depends on the kinds of assets the deceased owned and what they were worth at death. For example,
• if the deceased owned real property such as a house or cottage in Ontario, whether as the sole owner or as a tenant in common with someone else, probate is nearly always required to transfer the real property (or the deceased’s share of the property); or,
• if the deceased owned shares of a publicly-held corporation, probate will be required before the ownership of the shares can be transferred or the shares can be cashed out.
If the deceased had assets at a financial institution, such as a bank account, guaranteed investment certificate (GIC), or a safety deposit box, probate will usually be required before the Executor can access those assets. Every financial institution and bank has its own rules about the maximum value of assets that can be transferred without having the Will probated. If probate is not required, the financial institution or bank often requires the Executor to sign documents such as a Declaration of Transmission before the assets will be released.
If you are acting as an Executor or Estate Trustee, make an appointment to meet with one of our lawyers at our Ottawa office. We will make sure you understand what probate is and whether you need it. If it is needed, we will help make the process of obtaining probate as clear and straightforward as possible.
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.
