5 Tips for Probating a Family Estate

Your loved one’s estate is their last wish for the people and property they cared about most. Treat it with respect.  

  1. Hire a wills and estate lawyer. It’s more complex than you think.

Probating an estate seems straightforward, but the ins and outs can be complex. Instead of being a DIY specialist, most estate administrators hire a lawyer. It’s worth the small expense involved. 

Delays from errors by inexperienced estate trustees are frustrating for heirs and can cause exceptional costs. Experienced wills and estates lawyers deal with Ontario probate courts every day. They’re familiar with probate forms, court rules and next steps. They keep the paperwork filed in order.

If your family’s estate trustee insists on going it alone, get a lawyer to give you independent legal advice.

2. You can have too many cooks in the kitchen.

While appointing multiple executors can prevent an aggressive trustee from acting rashly, two heads are not always better than one. Executors who disagree over your loved one’s final will and testament may have to hire their own lawyers to sort out the dispute. Ditto for heirs or anyone who questions the estate’s distribution. 

When it feels like the room is more crowded than it should be, you could be right. Miles v Vince, a 2014 B.C. Court of Appeal decision, found disharmony is a sure sign the estate’s administration has gone sideways. 

3. You can ask the court to remove or replace an estate trustee. It’s been done before.

The courts agree with you. Removing an executor can be in your best interests. Courts side with the deceased’s right to choose any executor they want, provided they put their own interests aside. When they don’t, the Trustee Act gives judges the right to remove or replace a trustee for conflict of interest. 

Not properly executing an estate can also be cause for removal. Executors have about a year to wind up an estate. Joy Oldfield had her brother’s estate executor replaced in 2005 after waiting seven years for the Ontario farmer’s property to be distributed. An Ontario court ruled the executor had borrowed money from his estate, failed to keep the farm in good repair and was hostile to his neighbour’s sister. 

If you are put off by a trustee’s actions or inaction, move quickly. Delays affect your legal rights and ability to get a favourable decision.

4. Mental incapacity is grounds for dismissal.

Before E.J. died in October 2004, she appointed all of her children executors and trustees of her estate. Six months later, confusion reigned supreme. 

Although their lawyer obtained a certificate of appointment of estate trustee within the week, his polite letters to her middle-aged son were met with what an Ontario court called “confusing, unresponsive, unhelpful and increasingly irrational” responses. Not only was her son deeply distrustful, he appeared unable to grasp the lawyer’s requests. Even more upsetting, he believed his siblings were conspiring to deprive him of his inheritance. 

The court laid the chaos to rest when it determined he had suffered brain damage from substance abuse and been diagnosed with a mental illness eight years earlier. In the absence of a psychiatrist’s report, the judge concluded the siblings’ situation was hopeless. “Simply put, if the respondent remains a trustee, he will either prevent the estate from being properly executed, or will delay it significantly and at some considerable cost.” The brother was dismissed as executor.

5. Pay the taxes. Estate trustees are personally liable otherwise..

Who isn’t tired of paying taxes? Ontario estate trustees can be forced to take estate taxes out of their own pocket if they don’t file a final income tax return. While heirs won’t pay taxes on anything they receive, estate taxes are due before that occurs. Getting a clearance certificate showing taxes are paid is the final step before the remains are distributed. Taxes the trustee must pay include:

  • Estate administration tax, commonly called probate tax or probate fees – Approximately 1.5% of the estate’s value, minus assets that pass outside the estate. For example, the matrimonial home or RRSPs that go directly to a surviving spouse or dependent child. 
  • Personal income tax — Whatever your family member owed when they died, minus any income arising from their death.
  • Trust income — Any money the trust makes from investments like GICs or interest on bank accounts before it is distributed. 
  • Capital gains on second homes, cottages or income properties — Principal residences excluded.

Arranging an estate so there are no assets left to pay the taxes may seem crafty. But picture the poor administrator’s shock! 

Affordable Wills and Estates Lawyers in Ontario

When you need advice about an estate trustee’s actions, ask Axess Law Ontario’s wills and estate lawyers. Video conferencing is available anywhere in Ontario, 7 days a week. Dial toll free to 1-877-552-9377 or 647-479-0118 in Toronto or use our online booking form for day or evening appointments. In person meetings with our licensed lawyers are available at our Toronto, Scarborough, Vaughan, Etobicoke, Ottawa, Mississauga Winston Churchill or Mississauga Heartland law offices. 
Click here to learn more about Axess Law’s wills and estates law services.