Probate, Dying in Ontario

Probate In Ontario Canada

Probate In Ontario

Probate, executor, and probate taxes are unfamiliar to many of us who have never experienced death in the family. But sooner or later it will come and we would have to get familiar with the terms.
Here, you can find everything the legal terms you need to know when a family member dies in Ontario.

Probate

  1. What Is Probate?
  2. Probate Taxes In Ontario
  3. What is this Estate Information Return?
  4. Legal Cost for Obtaining a Certificate of Appointment
  5. What is my “Estate”?
  6. Letters of Probate
  7. I do not know if there is a will, what do I do?
  8. Action Plan

What is Probate?

When someone dies owning an asset (bank account, property, vehicle, etc.) by themselves,  in order to transfer the ownership or title of that asset, you must probate. Probate is the court process for when a person applies to be the Executor and obtains a Certificate of Appointment. This certificate is what grants the legal authority for the Executor to perform all the duties needed. This used to be called “Letters of Probate.” The Executor or “Estate Trustee” is the named person who follows the will and distributes the estate. If there is no Last Will and Testament, then the Executor will follow the rules under the Ontario Succession Law Reform Act.

What assets are excluded from Probate?

  • Jointly owned assets with a right of survivorship (JTWROS)
  • RRSPs, RRIFs, TFSAs with a named beneficiary other than ‘Estate’
  • Insurance proceeds paid to a named beneficiary other than ‘Estate’
  • Real estate owned outside of Ontario
  • Gifts made during your life
  • Assets in a trust created during your lifetime (inter vivos trusts).

executor of will

What is a Certificate of Appointment of Estate Trustee?

A Certificate of Appointment of Estate Trustee is a document issued by the court that appoints someone as the executor and gives them the authority to manage and distribute the estate of a person who either died with a Last Will and Testament or who died intestate (without a will). The Certificate of Appointment proves the authority of the Executor to administer the provisions of the deceased’s will or if there is no will, as directed by the Ontario Succession Law Reform Act lists who may apply to become the Executor of the estate as well as who the heirs of law would be.

Little Black Book Of Probate

Little Black Book of Probate is a collection of frequently asked questions along with their answers that helps understanding probate better. The book was written by Hummingbird's Wills & Estate lawyer, Amy MacAlpine.
Click to download

How long does probate take in Ontario?

Right now the courts are experiencing a backlog in processing the Applications for a Certificate of Appointment of Estate Trustee (Executor). We are currently seeing process times up to 12-14 weeks at some local courts. Overall, it typically takes one year to probate an estate. If there is litigation, trusts or other complicated issues, it could take years.

Foreign Executor

Probate Taxes In Ontario

Do I have to pay a tax to probate? I thought there was no “death tax”?

While there is no “death tax” in Ontario, you do have to pay an “Estate Administration Tax” (use to be called a Probate Fee) to the Ministry of Finance.  This tax is calculated based on the total value of all assets owned by the deceased at the time of death that will go through the probate process. It is about 1.5% of the value of the estate. You can find a calculator here:

Estate Administration Tax Calculator

Click for more details

This fee is payable to the Ministry of Finance at the time you submit your Application of a Certificate of Appointment of Estate Trustee.

Do I have to file taxes for the deceased?

Yes! The Executor must file two returns on behalf of the deceased. A return reflecting the time period during the year the person was alive, and then a second final return for the remaining of the year.  Executors should seek the advice of an accountant who is familiar with processing terminal returns. Executors should also request a Clearance Certificate from the CRA to confirm that all assessments are final. Until the receipt of this CRA clearance, it is suggested that the final distribution of the estate not be made to protect the estate in case there is an amount due.

What do I do with the car? Who do I contact?

  • Cancel the deceased’s driver’s license with Service Ontario
  • Cancel the car insurance: Here is a link to help you find contact information for car insurance companies.

Car Insurance Company Contact List

Click for more details

  • Cancel CAA: Here is a link to help you contact CAA after someone dies.

CAA Services

Click for more details

  • When someone dies owning a car, it can be transferred by visiting Service Ontario. You will need either the Certificate of Appointment and a copy of the will, or a letter from your lawyer stating the probate was not required. We are familiar with this process and can help provide you with this letter. Contact us at Amy MacAlpine, Partner Lawyer of Wills & Estates.
  • Here is a useful link from Service Ontario for more information:

How to buy or sell a used car in Ontario

Click for more details

What is this Estate Information Return?

Executors beware! If you go through the probate process and have been issued a Certificate of appointment any time after January 1, 2015, you are subject to new reporting rules. The Estate Trustee or Executor must file an Estate Information Return to the Ontario Ministry of Finance within 90 calendar days of the issued Certificate of Appointment. This is a detailed inventory reflecting everything a person owned at death and the value of those assets. There are heavy penalties and a lifetime undertaking to report any changes in the estate value. In 2016, we are starting to see the first of audits and are waiting to see how penalties are actually served. The Registrar has reported that the amount of administration tax collected has already tripled since the rule has been implemented. You can bet that this requirement is not going anywhere!

Probate Lawyer

Legal Cost for Obtaining a Certificate of Appointment

The costs to hire a probate lawyer for some services, such as for obtaining the Certificate of Appointment, can be charged to the estate. The Executor does not have to personally pay for this service. Certificate of Appointment of Estate Trustee with a Will applications starts at $3500, plus disbursements and HST. Costs for legal additional counsel, support and/or administration services are determined on a case by case basis.

**All pricing is reviewed and quoted with the client prior to being retained

What is my “Estate”?

Your “estate” consists of all the things that you own by yourself at death. Your car, bank accounts, clothes, jewelry, business interest, etc. If you own it, it is part of your estate. Joint accounts and beneficiary designation accounts such as TFSA or life insurance are NOT part of your estate for probate purposes.

How does my estate (assets) get transferred after I die?

Your assets that you own by yourself, can be transferred in two ways:  either in accordance with a Last Will and Testament that you leave prior to your death, which states exactly who you want to have what, or if you die “intestate” (without a Last Will and Testament) the Ontario Succession Law Reform Act dictates beneficiaries your property will be transferred to.

Read more about dying without a Will.

Letter of Probate

In order to give or transfer your estate assets to a beneficiary, the Executor or Estate Trustee (the person in charge) has to be named, appointed and provided the official authority to do so. This appointment is called a Certificate of Appointment of Estate Trustee With or Without a Will. This formerly was referred to as Letter of Probate.

See below for information on how to transfer a car, or transfer title to real estate property.

I do not know if there is a will, what do I do?

  • If you are not sure whether the person who died had a Last Will and Testament or not, you can contact the estates department of the local Superior court in the community where the deceased lived to see if a will was registered. For court locations and contact information, you can use the following link:

Court Locations

Click to view a list of Ontario court locations

  • You can also list an advertisement on a new online website Notice Connect. Among other services, they can publish a notice to lawyers, requesting that any lawyer known to have a prepared and/or stored a will for the deceased, contacts you.
  • Ask, Ask, Ask!! Ask people like the deceased’s accountant, life insurance broker, financial broker, lawyer, and closest friend, as to whether they know of any Will the person may have left.

Do I need the original Will?

Yes! The Application for Certificate of Appointment with a Will requires the submission of the original will along with an Affidavit of Execution. The Affidavit of Execution is a sworn statement from one of the witnesses, stating the formal requirements were followed. If the original will can not be found or the Affidavit of Execution is missing, there are some things you can do to either attest to the signature or contact the witnesses. Your probate lawyer should be able to help you with these alternatives.

Who is in charge of my estate?

The Executor or the Estate Trustee is the person who is in charge of transferring (giving) your estate assets to the intended beneficiary.  The Executor has many duties including but not limited to arranging the funeral, collecting all your assets, paying off your debts, preparing and paying your taxes, and distributing what is left.

Hummingbird Lawyers LLP services the Greater Toronto area, York Region including Vaughan, Richmond Hill, Aurora, Newmarket, Thornhill, Markham, North York, and surrounding areas. Hummingbird Lawyers LLP is a full-service firm offering legal support with real estate lawyers, corporate lawyers, civil litigation, family law, estates, and wills.

If you are looking for a probate lawyer require more information please do not hesitate to contact Amy MacAlpine, Partner Lawyer of Wills & Estates.

If you require more information please do not hesitate to contact Amy MacAlpine, a wills & estates lawyer.

Action Plan

3 Steps to Get Going

  1. Review the information on this page.
  2. Contact Hummingbird Lawyers – 905 731 1911 | info@hummingbirdlaw.com or Amy MacAlpine at 905 731 1911 ext. 217 | amy@hummingbirdlaw.com
  3. Know that we got you covered.

Additional Resources

Amy MacAlpine

Amy MacAlpine is a partner at Hummingbird Lawyers. She supports clients in the areas of Wills and Estates, Litigation, and Family Law.

13 Comments

  • Reply September 17, 2019

    Nick

    Hi,
    I didn’t see if there was a way or not to change the Will after the fact the person has passed away. It has been my understanding that a Will can not be changed after death. Can you please clarify?

    • Reply October 16, 2019

      Hummingbird Lawyers

      Nick,

      A Will cannot be changed after the fact. A Will is a document created to express the Testator/Testatrix’s intentions. After this person passes, if changes were allowed it would not be the testamentary intentions of the person that has passed.

      A Will can be contested by individuals that are listed as beneficiaries or if they are not listed in the Will then there can be challenges if you are a particular individual such as a dependent etc.

      I hope this helps!

  • Reply October 18, 2019

    Vivian Black

    I didn’t know that probate is what happens when someone dies owning an asset. My husband and I are looking for tips to help my mother and father get probate to make sure that their assets are evenly divided. We will keep these tips in mind when searching for a professional.

  • Reply October 22, 2019

    Kim Rothman

    I live in the UK. I believe that I have been named in a Will in Courtice Ontario. How do I find out if I have been named. I am no longer in contact with the family,so cannot ask them myself.

    • Reply October 23, 2019

      Hummingbird Lawyers

      Thank you so much for the comment Kim.
      Please contact our Wills & Estate lawyers directly by filling out the form or call and one of our lawyers would be glad to assist further.

  • Reply October 28, 2019

    Brian Weaver

    My wife’s father recently passed in Ontario and her siblings are not being forthcoming with his will, we live in Alberta. Is there a legal requirement for family to receive a copy of the will? Also, can she demand that there be a probate hearing to ensure the will is legal?

    • Reply October 29, 2019

      Hummingbird Lawyers

      Thank you for your message, Brian. Sorry to hear about the loss of a family member.
      We focus on Probate in Ontario. Please contact our firm to speak to a probate lawyer directly, or fill out the form on this page and our lawyer will get in touch with you. Thank you so much.

  • Reply October 31, 2019

    Jennifer Liboiron

    morning
    several.questions
    i need to locate and hire a lawyer
    on behald my younger brother
    and myself
    and my children
    our oldest brother forced both of us to sign 9ff exectors
    and had been selling belongings of dead parent
    has had many buyers into dead patents home
    tursday all locks were changed on the home
    and hes had my youngest brother arrested on charges that have lay dormant 25 year dui
    questions are as follows
    we are permitted our executiveness reinstated, however, we require to hire our own legal team?
    our parent died june this year, none of the items listed in will have been offered to receipients, why havent these itens bern gifted, is there somethi g we shpuld be doing or requesting, to receive those items?
    govt has not passed probaye, its a long drawn out affair? how much time should we expect?
    we, Myself I will have ypinger brother attend meetings, so that legal rep is able to listen to hear His struggles.
    as younger brothers lived in home with dead parent for +23 years, due to
    his medical requirements. also as parents partner pass 15 years prior brother was saftey net for parent, companion etc.
    is this legal firm anle to accept new client. what would be the overall expense for my fsmily members to hire ypur team, to assist sorting this all out.
    could it be a set fee?
    ty for taki g the time to understand this complex situation.

    • Reply November 1, 2019

      Hummingbird Lawyers

      Thanks for your message, Jennifer.
      The best thing to do in this case is to contact our probate lawyer directly by either filling out the form on this page or calling us directly at 905.731.1911.
      You can also email us at info@hummingbirdlaw.com and we will forward your information to our probate lawyer.

  • Reply November 7, 2019

    Linda

    Why do you still need Certificate Of Appointment Of Estate when the Will names the executor?

    • Reply November 12, 2019

      Hummingbird Lawyers

      Thank you for your inquiry. To answer your question briefly, the need for a Certificate depends on the nature of the assets the deceased left behind. Assets such as real estate, for example, unless a narrow exemption applies, may not be transferred from the deceased to a beneficiary in Ontario without a Certificate of Appointment of Estate Trustee. A Certificate of Appointment of Estate Trustee is a document issued by the court that appoints someone as the executor and gives them the authority to manage and distribute the estate of a person who died.

      There are some assets that may be distributed with the Will alone. If you require further assistance, we would be happy to set up a consultation, in person or by phone.

      Please do not hesitate to contact me directly at 905 -731-1911 at extension 230.

  • Reply November 16, 2019

    Brian

    How do you know if the executors are being honest when it comes to declaring assets, specifically investments/bank accounts/bearer bonds?

    • Reply November 18, 2019

      Amy MacAlpine

      Thank you for your question. As a beneficiary, you are entitled to an accounting and can ask for statements/receipts. There is also a formal court process that you can request if you are not able to get the disclosure and answers you are looking for.

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