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Probate 101: Q’s to Ask Your Probate Lawyer

What is a letter of probate?

It’s the former name for a certificate of appointment of estate trustee with or without a will. The term is no longer used.

How long does it take to get approved as estate executor?

Usually up to 15 days, once the paperwork is filed with an Ontario probate court. It can take longer if the court has questions or needs more information to make a decision. If someone has objected to your appointment or already applied to be appointed as estate trustee, that could also delay the probate process. 

Do you need the original will or will a photocopy do?

The original, please. Photocopies are not legally valid documents in their own right. Your probate lawyer can remedy loss of the original will if needed. But it is always easier to work with the original version and originals of any codicils (changes to it). The will is attached to the application for certificate of appointment with a will (or without a will) and given to Ontario probate court to confirm appointment of the estate trustee. 

What is the affidavit of execution?

It’s a sworn statement from one the witnesses who signed the original will. The affidavit confirms the formal requirements for making a legally valid will were followed when it was executed and signed. Your probate lawyer can arrange for the affidavit and ensure it is properly witnessed, signed and submitted to the court.

How do I know if the original will is the latest?

Court clerks search the court record for more recent wills before signing off on the estate trustee certificate. If you know the family or the deceased’s lawyer, you can ask them if any changes were made or if they have a signed original of the latest will for comparison to your copy.

What if I can’t find a will?

As long as you are sure a will was made and have exhausted the most likely sources (family members, personal lawyer, safety deposit box), you can try the local courthouse and online wills registries. The Archives of Ontario has wills made before 1976. If you genuinely can’t find a will and have never seen one, you can apply for a certificate of appointment of estate trustee without a will.

What if the deceased didn’t have any or just a few assets?

A homeless person or priest who took a vow of poverty may genuinely have few or no assets at all. No assets means no probate process. Similarly, if there is a car that could be sold and the proceeds given to charity or some personal possessions that can be donated, probate is not necessary. All you will need is the original will or a notarized copy of it.

What does probate cost?

Filing probate forms is free, but you may be required to post a bond and estate administration taxes are due and payable when you submit your application. The cost of hiring a probate lawyer varies depending on the legal practitioner’s skill and experience. Ask for a quote before signing any legal retainer. Probate expenses can be charged to the state, as long as they are reasonable and the estate can afford it.

Why is a bond necessary?

It isn’t always. Bonds are used when:

  • the deceased had no will
  • a will exists, but you weren’t named estate trustee in it
  • or a will exists, but you live outside of Ontario, in another province or territory or in another Commonwealth country.

The bond is a guarantee that the collection, administration and accounting of the deceased’s estates will be handled properly. It protects beneficiaries and creditors by ensuring they are paid. 

How much is the bond? Do I have to pay it right away?

Bonds are generally twice as much as the value of the estate. A probate court judge decides the bond amount. You don’t have to pay the bond amount yourself. You can ask another person or a licensed Ontario surety and fidelity insurance company to guarantee you. As long as you perform your estate trustee duties according to Ontario estate law, you won’t have to worry about the bond. But if you default, you could be liable for the entire bond amount.

How much is the estate administration tax?

It depends on the value of the estate. Small estates of $1,000 or less aren’t charged tax. For estates above $1,000, you will pay:

  •  $5 per $1,000 for estates of up to $50,000, plus
  •  $15 for every $1,000 over $50,000. 

The tax is payable to the Ontario Ministry of Finance when your probate lawyer applies for the certificate of appointment of estate trustee. You can recover the cost from the estate.

Get Your Probate Questions Answered

Axess Law’s Ontario probate lawyers can answer any questions you have about administering an estate of any size. Call 1-877-522-9377 or in Greater Toronto 647-479-0118 or use our online booking form to make an appointment for an online video call. Virtual video conferences are available day or evening, 7 days a week. Drop in if you prefer to make an in-person appointment. We have licensed lawyers in Ottawa, Toronto, Scarborough, Vaughan, Etobicoke, Mississauga Winston Churchill or Mississauga Heartland.

Click here to learn more about Axess Law’s probate law services.

Photo by Gerd Altmann|Pixabay.

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