It may not be a Stradivarius, but it’s been in the family forever. A precious family heirloom, stained with decades, maybe centuries, of family mythology. The stories it could tell! When its owner passes on, can you be sure it will go to the rightful heir?
Probate or Prostrate
Struggles over family heirlooms are why probate courts exist. If your family is being torn apart over an “unfair” gift, you have options. Going to Ontario Superior Court of Justice to contest the deceased’s last will and testament is one of them. Will you probate or prostrate?
Having a Will Approved by Probate Court
Probate court ensures the deceased actually wrote the will and signed it without being coerced, bullied or influenced. It protects everyone’s interests by clearing up any uncertainty that the will was their last and and that it ticks all the required boxes for formal wills. It also confirms who the estate trustees (executors or personal representatives, it’s all the same thing) will be. Taxes owing the province on the estate’s value — the estate administration tax — are paid at the same time.
But Is the Will Valid?
Personal wills can be invalid for many reasons. A conflict of interest for witnesses, a suspicious signature that could be forged or missing pages may all cause a will to be rejected by the court. A will signed by a single witness at a patient’s hospital bedside in 2000 got a fail. Unless a will is completely handwritten (called a holographic will), two witnesses’ signatures are usually needed. Likewise, an Ontario will with a “basket clause” was overturned in 2017 for giving the executor the power to decide what assets to include, after the will writer or “testator” was gone. It was too uncertain for the court to accept.
What Kind of Will is This?
The family that prays or plays together, stays together, so they say. But will that be true after the will is read? An elderly testator’s will may come under serious challenge in probate court. Whether or not you think they were of sound mind, can you prove it? Mental capacity is a game changer in probate court and can bring a will’s whole contents or parts into question. Probate court judges are objective bystanders. What better place to dispute who said what.
Stopping the Claims Clock
The clock for creditors’ and dependents’ claims can start running from the date a probate application is approved. Applying for probate stops the clock — at six months for dependents’ claims for financial support and two years for most other legal claims. Advertising the testator’s death online or in local newspapers can help estate trustees avoid having to pay the deceased’s debts out of their own pocket by setting a concrete deadline for receiving creditors’ claims. It’s just another good reason to probate an estate.
Confirming the Estate Trustees
Who distributes the estate can be in dispute, if the heirs have their way. Most wills name an estate trustee or alternates. But when a will doesn’t or the heirs disagree with the choices, it’s up to probate court to decide. The certificate of appointment of estate trustee with a will proves the executors’ legal authority or right to act for the deceased.
When There is No Will and No Trustee
Since the estate trustees distribute what’s in the will, not having a will is a legal headache. Heirs must either go off to probate court to get a certificate of appointment of estate trustee without a will or let the Province of Ontario make decisions about where their loved one’s property and possessions go. (That might not go well.)
When the Trustee Dies Without an Alternate
“Arnie” appoints his devoted spouse of 50 years to be his sole estate trustee. But months after Arnie dies, his grieving spouse has a fatal heart attack. The shock is simply too much. Now what? It’s up to the surviving next-of-kin, or a family friend if there aren’t any, to go to an Ontario probate court to be appointed in the spouse’s place. If there genuinely isn’t anyone who can or will step into the estate trustee’s shoes, the court can appoint a public administrator to wind up the estate.
Who’s Guarding the Guardian?
Excellent point. Handling all those assets can be tempting for light fingered executors. Probate courts keep tabs on what assets the deceased had and where they went. Estate trustees swear an affidavit verifying they are telling the truth about the size of the estate and its value. That allows the court can order an audit if the estate information return, filed within 180 days of the probate application being approved, varies significantly from what the trustee declared.
Get Advice to Probate an Ontario Estate
If you’re debating whether to probate an estate, talk to Axess Law’s Ontario probate lawyers. They can arrange a certificate of appointment of estate trustee for you. Dial 1-877-522-9377 or in Greater Toronto 647-479-0118 or use our online booking form to make an appointment for a remote video call. We’re available via video conference 7 days a week, day or evening, at your convenience. In-person meetings can be arranged in Ottawa, Toronto, Scarborough, Vaughan, Etobicoke, Mississauga Winston Churchill or Mississauga Heartland.
Click here to learn more about Axess Law’s probate law services.
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