What is Probate?

Published on 29 August 2022, 07:22:56 AM

What is Probate?

When you pass away, you’ll have hopefully passed away having written a will – the document that dictates how your estate is to be distributed in addition to a number of other things. Upon your death, your will is going to most likely be probated. 

Probate is the word that describes the process of having a Court accept a will as a valid Last Will and Testament and appoint an individual as executor of the estate to administer the estate. Probate is a big reason to avoid homemade wills and make your will with a lawyer, since a lawyer knows how to make a will that’ll pass the probate test and not be rejected by the Courts. 

Administering an Estate:

• With a Will: The individual appointed as executor in the will must apply to the Court for a “Certificate of Appointment as Estate Trustee with a Will”. Once the Court has validated the will and granted this certificate, the executor can administer the will.

• Without a Will: An estate must still be dealt with even if no will is left behind, so a Court will appoint someone to administer the estate on behalf of the deceased. Usually it’s the spouse, family member, or perhaps a close friend. The Court will award a “Certificate of Appointment of Estate Trustee without a Will” which gives the person they’ve chosen the right to administer the estate in accordance with intestacy laws. 

How Long Does Probate Take?

• Applying for Probate: To apply for probate you must submit an application. This process should take between 1-2 weeks and is relatively quick.

• Having the Court Review Your Application: This is where things aren’t so quick. Court backlog can cause delays in your probate process, but unfortunately there isn’t a way to avoid it. Once you submit your application it’s all in the Court’s hands, and they can take anywhere between a few weeks and a few months to review your file. Typically, courts in the GTA have the longest processing time since they’re the busiest. That being said, you must file your application in the Court where the deceased resided, so you can’t file elsewhere to avoid a lengthy wait time. 

When Do I Need Probate?

The short answer – most of the time. Probate is needed when it’s required that the Court validate the will, validate the executor if there is a dispute about who it should be, when it’s required by third parties such as a bank (discussed below), or where land must be transferred since the land registry requires probate before transferring land from the deceased’s name to someone else.

Financial institutions often require probate to protect themselves and eliminate liability. 

• Let’s use an example: Suppose your sister Jackie made you the estate trustee in her last will, but she also had an old will you didn’t know about where she named her brother Aaron the trustee. If Aaron came to the bank with a copy of Jackie’s will claiming he was the trustee, the bank would give him Jackie’s money. However, if you came to the bank days later with her other will and claimed you were the executor, they’d have to pay out the money to you again. Obviously, the bank doesn’t want to do that as it’s a major money loss for them. Therefore, it’s common that a bank require probate so they know that the person they’re paying out is the person the court approved as executor.

 

• Common Misconceptions: Some may think that if they don’t have many assets, if those assets aren’t worth too much, or if there’s only a few beneficiaries that are all in agreement they don’t need probate. Unfortunately, these aren’t the factors that dictate whether or not you need it.

Do I Need a Lawyer to Probate?

• It’s not required by law that you hire a lawyer for probate but it’s highly advisable that you do. As with many legal processes, probate related documents can be extremely difficult to understand properly and navigate, so most people prefer to have someone with legal expertise by their side.

• Specifically, if there’s anything that may be challenged or closely judged by the courts it is very strongly recommended you retain an experienced lawyer. 

How Expensive is Probate?

• Probate brings along with it probate fees which many people would like to avoid. Unfortunately, there’s no special recipe for a “will that doesn’t need probate”; it all depends on the assets the deceased held, how they were held (e.g. were they jointly owned?), if there are things to challenged in the will (e.g. is there a dispute as to who the executor is?) and much more. You might luck out and have a will that doesn’t need to be probated, but most of the time you’ll have to go through this process.

• Probate fees in Ontario are calculated in direct relation to the value of the estate. It’ll cost $250 for the first $50,000 of the estate and $15 for each $1000 after that. For example, for an estate valued at $200,000, probate fees would amount to $2,500. These are the fees that most people would like to avoid and normally can’t, but on the bright side, Ontario doesn’t have any inheritance taxes!

Hiring a Probate Lawyer

Hiring a Probate Lawyer When You Have a Will

• With a Will, the entire process is much faster and smoother. Your lawyer will review the will and advise any executors or beneficiaries on a number of legal matters such as identifying anything that may be challenged by the Court. 

Hiring a Probate Lawyer When You Don’t Have a Will

• When there’s no Will a probate lawyer may still be retained to help administer the estate in accordance with intestacy laws. These laws dictate where an estate should go when there’s no Will and differ by Province, Country etc. For example, sometimes the entire estate will go to the surviving spouse. Alternatively, a family member of the deceased may apply to be the estate administrator. In this case, all other relatives must complete a “renunciation” – a legal statement retracting their right to administer the estate. Probate lawyers can assist with submitting renunciations to the Court and assisting the family member who becomes the administrator.

Axess Law offers probate services all across Ontario. Convenience and speed are our speciality, so our experts work diligently to ensure your application is done accurately and quickly.

Our locations are situated across all major cities in the GTA. In addition to that, phone consultations as well as appointments can be done in the evenings or on the weekend, so you don’t need to take time off work to satisfy your legal needs. 

How it Works:

• Step 1: Call our line to speak with one of our client representatives. They’ll send you a retainer to fill in and return over email and schedule a phone call with your lawyer.
• Step 2: Hop on a phone call with one of our lawyers for a quick consultation. From there, they’ll tell you what documents they need from you and what’ll happen moving forward.
• Step 3: Your lawyer will spend the next few days studying your file. When they’re ready, they’ll invite you in for a signing appointment. You’ll fill out the application together and your lawyer will submit it once everything’s done! It’s as easy as 1,2,3. Literally. 

Most importantly, we’re here to help. Our probate lawyers are knowledgeable and specialize in Probate and Wills. They’ll work through complexities related to your file and assist both executors and beneficiaries through the probate process. Call 1-877-522-9377 or in Greater Toronto 647-479-0118 or use our online booking form to make an appointment. Virtual video calls can be made 7 days a week, day or evening, at times that suit your schedule. In-person meetings are available 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.