We know you heard you could save money on probate fees by just handing your assets directly to your heirs. That may or may not be true. In reality, most estates go through probate. Good try though.
The Truth About Probate
Probate is a little more involved than that. Most Ontarians have assets and when they die, they have to be transferred to their heirs or given to charity. That’s what probate is — transferring title or ownership of a car, houses or real property, money, personal possessions or investments.
Probate Takes Time
We have to admit probate does take time. Most estates can be probated in under a year — courts call it an executor’s year — but complex estates can take longer. Lawsuits by vexed heirs may take years to resolve, tying up the estate in costly legal fees that chip into beneficiaries’ inheritances and the estate trustee in time-consuming trips to court. Then there’s the publicity. Your court records can be accessed online at any time, by anyone.
Probate is required to:
- declare a will is legally valid
- confirm it is the last will and testament
- and appoint an executor, giving them legal authority to carry out the will’s directions and wishes.
When to Probate
Some estates are legally required to be probated or it is the only way, short of mediation, to resolve a dispute:
- you die without a will, leaving your final wishes up in the air
- you have a will, but forget or neglect to name an estate trustee, so one has to be appointed by the court
- your bank or financial institution needs proof a beneficiary has a legal right to your accounts or investments
- you own real property, such a house, condo, cottage or lake lot, that needs to be sold
- your heirs disagree on the person you selected as estate trustee
- they dispute your will or your creditors launch a legal action
- you have minor children or adult children who have disabilities and are unable to give legal consent to receive a gift or trust.
When There is No Will
When you die without a will, your next-of-kin or a friend can ask Ontario probate court to appoint them estate trustee or the province can appoint a third party as administrator. Since your property and possessions may not be distributed the way you intended, we don’t recommend it. In comparison, making a will is easy, economical and well worth the effort.
Assets Excluded from Probate
Probate lawyers deal with just those assets that need to go through the probate process to be distributed to heirs. Some assets are excluded if they pass directly to named beneficiaries:
- jointly owned assets, such as bank accounts or real estate co-owned in joint tenancy with a spouse
- RRSPs, RRIFs or TFSAs
- jointly owned RESPs, unless only one parent is the subscriber
- life insurance
- real estate outside of Ontario
- gifts made while you’re alive
- inter vivos trusts, which are assets you pass to heirs during your life
- and CPP (Canada Pension Plan) death benefits.
As long as you name a beneficiary other than estate on these assets, they don’t require probate.
Hiring a Probate Lawyer
Now you can probate an estate yourself and if you’re a lawyer, that would make sense. On the other hand, if you have everyday work and family obligations, having a lawyer can save you valuable time and money. Probate lawyers have all the right forms on hand and know just how to respond if the court clerk has questions.
Getting a Certificate of Appointment of Estate Trustee
For starters, you’ll need that certificate of appointment of estate trustee (with or without a will). A probate lawyer can arrange that for you, giving you legal authority to manage and distribute a deceased’s estate. They can also contend with any issues that may arise, like other parties applying to be executor.
What Could Possibly Go Wrong?
A lot. For example, you may review the will and decide distributing the estate is more complicated than you thought it was. You could do a quick canvas of the deceased’s assets and discover they are bankrupt or near to it. You might stumble across hard feelings between heirs that threaten your ability to be executor. Or the paperwork involved in tracking receipts and expense may be more tedious than you thought. If after all that, you decide you don’t want to be estate trustee after all, a probate lawyer can arrange to have you stepped down from the many responsibilities you have taken on.
Probate Advice for Ontario Estate Trustees
Axess Law’s Ontario probate lawyers can advise you on applying to be estate trustee. Dial 1-877-522-9377 or in Greater Toronto 647-479-0118 or use our online booking form for an appointment, day or evening, 7 days a week. Remote video calls allow you to talk with a lawyer without leaving home or you can meet in person at our Ottawa, Toronto, Scarborough, Vaughan, Etobicoke, Mississauga Winston Churchill or Mississauga Heartland law offices.
Click here to learn more about Axess Law’s probate law services.
Photo by Gerd Altmann|Pixabay.