Probate, Dying in Ontario

Probate In Ontario Canada
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 (Definition)?
  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 try this website.

Probate Definition

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 Do Not Require 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).

Type Of Trusts Explained

Family, Henson and Inter Vivo 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 Tax and Fees 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.

We have two offices for your convenience. Providing qualified, skilled and experienced lawyers in Toronto and lawyers in Vaughan, we are committed to giving our clients the convenience, expertise and guidance they need.

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

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    Amy

    Amy MacAlpine is a partner at Hummingbird Lawyers. She supports clients in the Will & Estates areas including planning, administration and litigation.

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    1. says: Anthony polmateer

      My father died and had a will and left me his car that he owes 3000 dollars on i said I would take over the loan but the government stepped in and seazed all assets saying he owed back taxes will I get the car still??

      1. says: Anthony polmateer

        My father died and had a will and left me his car that he owes 3000 dollars on i said I would take over the loan but the government stepped in and seazed all assets saying he owed back taxes will I get the car still?? Also he left me is cpp will I get this too still?

    2. says: Greg Machan

      If my wife and I should both die at the same time, ie. car accident, what happens to our estate. We have wills declaring our daughters are joint executors and everything is to be dived equally.
      We DO NOT want probate or pay probate tax.

    3. says: Amber

      Hello. My mother in law inherited 1/5th of a piece of property according to the will. 17 years ago her aunt died. The property when doing a title search indicates it is still in her uncles name. Property taxes are in the estate of both of them with a c/o one of the estate trustees which everyone pays a portion of, with no receipt.
      How would one go about getting their name on the title of the property ?
      Thanks so much.

      1. In Ontario, where there is a will the transfer to beneficiaries generally takes place at the end of the administration of the estate. If your mother-in-law’s aunt’s Estate was never administered, it is possible that there may be a right to have the property vest in the beneficiaries because 3 years passed. To provide specific advice on your situation we would need to see the Will and to understand better on what took place with the Estate of the aunt. If you would like to schedule a consultation, please let me know.

        Ioulia

    4. says: Tracy

      My mother passed away and there was no will, no executor but some money remaining in a RRIF with me as the beneficiary. And a tiny life insurance policy that paid for her funeral etc. Apparently she owes over 5000 dollar to Revenue Canada for the year. Is this my responsibility to pay??? She had a common law who has now also passed away and I am the only family member remaining.

      She passed in Oct. 2020 and the RRIF was transferred to me in December. The taxes I’m referring to are for 2020. Her common law partner passed in February 2021 but never took responsibility for any of the costs or arrangements etc.

      1. says: Ioulia Vinogradova

        Hello Tracy,

        Please accept our condolences on the anniversary of your loss of your mother.
        In Ontario, a beneficiary does not take on personally the debts of the deceased. If you became an Estate Trustee for the Estate of your mother, as an Estate Trustee you have a responsibility to pay her debts, but again it is not a personal responsibility. Often a financial institution holds some funds back to pay the taxes that become due on a RRIF or an RRSP account before it is paid out to a beneficiary. You can find out if that was the case.

        If you wish to speak specifically about your situation, don’t hesitate to contact us directly to book a consultation.

        Best regards,
        Ioulia

    5. says: Deborah

      My father owned 1/6th share of a hunting camp. His will was done Sept /12. Listing his share is left to us 3 daughters. There is a piece of hand written paper dated Nov/12 in the camp file, signed by all shareholders that shares can not be willed to individuals. Does this over ride his legal will. What do we do

      1. says: Ioulia Vinogradova

        Hello and thank you for your inquiry.

        Please accept our condolences for your loss. To be able to properly provide our opinion with respect to the documents you referenced in your inquiry, we would need to be able to review the documents. That said, in Ontario, if the deceased held shares at the time of his/her death in a privately held corporation it is possible that his rights are restricted if there is a valid shareholders agreement. A valid shareholders agreement of a privately held corporate would be binding on the Estate. If your father died in Ontario, and the ‘hunting camp’, is a privately held corporation in Ontario, it may be, but only if the paper you refer to is a valid shareholders’ agreement, that your father was restricted as to what he can do with his shares.

        If you would like to schedule a consultation, or to discuss our process, do not hesitate to let us know.

        Best regards,
        Ioulia

    6. says: Brian

      Hi Amy,

      Sadly my mother passed away in 2020! My brother and I are named in our parents Separation Agreement dating back 20 years. In the agreement it says that our mother could keep the contents of the matrimonial home for her lifetime and then for the benefit of the children, being myself and my brother. Unfortunately, our step father is not willing to comply. Do we need to probate our mothers will (where this is NOT mentioned) in order to proceed? My brother is an executor but my step father does not think we need to probate because he claims my mother had no assets. The contents of the home are valuable. Any thoughts on what we can do if someone is not willing to return the contents?

      1. says: Ioulia Vinogradova

        Hello Brian,

        Please accept my condolences for the loss of your mother. Generally, a well prepared separation agreement includes a clause to identify what happens on death. I am not able to provide you with an opinion on the separation agreement without reviewing it. That said, probating a will in Ontario (otherwise known as obtaining a Certificate of Appointment) is generally done where there are assets that won’t be released without it – for example a life insurance that names the Estate as the beneficiary.

        To provide you with an opinion as to your situation, I would need to review the separation agreement and the will, and have additional information regarding the valuable items you mentioned. If you would like to schedule a consultation directly, don’t hesitate to contact me.

        Regards,
        Ioulia

    7. says: James

      Firstly, I wanted to mention that we reside in Ontario, not sure if that changes the scenario.
      My father already had 2 children from a previous marriage. He then remarried in 1979 and had 2 more children. His wife is now terminally ill. Their matrimonial home is apparently solely in her name. Recently she stated she will be putting their 2 kids as the owners of the home, valued over a million dollars, while she is still alive. My father and her are legally married, shouldn’t the home automatically go to my father? He will be left with nothing, leaving us with the burden of caring for him financially. My father is now 81 and will be needing to go into a nursing home soon.

      1. says: Ioulia Vinogradova

        Hello James,

        Thank you for your inquiry. Given that you are inquiring on behalf of your father who is still alive, his situation blends the issues of Estate and Family Law. To answer your question, I recommend a consultation that would specifically deal with your father’s specific case. I suggest that you find out from your father if there is a marriage contract/cohabitation agreement, what he was contributing to the house, and schedule a consultation to specifically address your situation.

        Feel free to contact me directly to schedule a consultation appointment.

        Regards,
        Ioulia

    8. says: Kathleen

      Hello, my question is about closing a bank account. My mother passed away in 2019 and my sibling and I are coexecutors. He had proceeded to do her taxes and pay funeral costs by money orders from this account without my consent or providing proper accountability to me. I am worried that He has been taking money for his personal use. He did not inform either of her banking institutions that she passed away. Once I found out from her lawyer (6 months after her death) that I was in fact an executor I contacted the banks about her death and tried to get her financial statements. The one bank refused unless I appear with my brother to close the account. This is not acceptable based on our situation. How do I proceed? I did have a family lawyer try to get the information from my sibling but he has still refused to cooperate. Due to the pandemic there were no court proceedings. Now my lawyer says she is not a litigator, so she has signed off on my file. Any help is appreciated.

      1. says: Ioulia Vinogradova

        Hi, and thank you for your inquiry. From the information you provided it is not clear whether the account you are looking to close was a joint account between your mother and your sibling or is solely in your mother’s name. Generally if the account is joint with your siblings, then you will not be able to unilaterally close the account. If the account is in your mother’s name alone, then generally it is up to the financial institution to either request a certificate of appointment confirming that you have authority to instruct them what to do with the account of the deceased, or whether the account will be closed and any funds released to the trustees named in the will on other basis, for example on a personal indemnity basis to the bank. With respect to providing you an opinion regarding your siblings conduct, we will need to have more details about the circumstances to provide you with an opinion. Generally speaking, funeral and deceased’s taxes are proper expenses of the Estate that can be paid from the deceased’s account. If you wish to discuss this matter further, please contact me to schedule a consultation.

      1. says: Amy MacAlpine

        Hello,
        Not necessarily. You could potentially give it as a physical asset to the beneficiary.
        I would discuss this with an accountant and an estates lawyer to get the best answer.
        Amy

    9. says: Christina

      Hi my mother has 5 other siblings father passed away in 2011 with no written will
      Mother passed away in January of dementia And was diagnosed with dementia back in 2010
      My grandmother had a home which was sold this June for 865,00 after real estate fee lawyer fee and whatever else came to 814,000 my uncle decided that he would show the will after 7 years that it’s been hiding which doesn’t state on the will that he gets 50 % (400,000) and another sister who lived with my grandmother for free gets $200,000 and the rest of the 200,000 is split amongst 4 other siblings that’s $50,000 each . It was typed out on a blank paper with no signatures no stamps no witness signature. Is this right ?

      1. says: Ioulia Vinogradova

        Hello Christina,

        Thank you for your inquiry with Hummingbird Lawyers. In Ontario, for a Will to be valid, it must be dated, signed by the testator and the two witnesses who had to be present at the time of signing and had to witness the testator sign the will. There is an exception to the requirement to have two witnesses present when the will is written entirely handwritten by the testator (the deceased person whose will it is purported to be). It sounds like the will that is being presented to you does not meet the requirements to be deemed a valid will. That said, to advise you properly I would need to see the “will” that is not being provided to you and to obtain additional information. If you would like to schedule a consultation to discuss this further, please feel free to email me directly, and include my assistant Jenny at jenny@hummingbirdlaw.com.

        I look forward to hearing from you.
        Best regards,
        Ioulia

    10. says: tim

      My dad passed away and cannot find a signed will, going thru probate, but the one asset he has would then trigger capital gains tax. when processing his last return, can you prorate the deemed proceeds to indicate his spouse would take the asset as ACB and the kids would take it at FMV and thus tax is based on the portion that is FMV. His spouse will get 100% of the proceeds when the property is sold.

      1. says: Ioulia Vinogradova

        Please accept our condolences for the loss of your father. We received your comment. Applying for a certificate of appointment triggers Estate Administration Tax which is calculated on the value of the assets of the estate as at the date of death. With respect to terminal return filings and the income/capital gains tax, we recommend that you speak to an accountant. If you are looking to speak to a tax lawyer, please email me directly and we can direct you.

        If you are looking to speak to an estate lawyer, I would be happy to schedule a call to understand better your situation and advise you accordingly.

    11. says: Anthony

      I understand the risks in doing so but my siblings and I agreed to add myself to my mother’s bank accounts. I’m wondering what the risks are in adding one sibling (or all of us|) to my mothers property to avoid probate.
      would the fees in doing so outweigh the benefits of avoiding 1.5% probate fees?

    12. says: TONY MAZZ

      This is a continuation to my previous question just submitted about an hour ago.

      In short does an executor of the will need to inform or need permission from the estate lawyer to list the estate home for sate? All he has now is that he is named the executor of the estate.

    13. says: TONY MAZZ

      My brother in law father died last month. He was appointed in the will as the executor. All the beneficiaries agreed to list the home. I’m a real estate agent and would like to know do we need a certificate of appointment of estate trustee before we can list the home? Do I need something from his lawyer saying we can go ahead and list the home? Can I write up the listing as the estate of Mr. Smith in trust …..etc.

    14. says: Donna

      Hello, Amy. My mother passed Dec 1/20 & her Will names me & my sister as co-executrices. When she moved into long-term care 3+ years ago, she divested herself of all property (furniture, glass-wear, art, etc.), gifting it at that time to me, my sister & our 2 brothers. Consequently, her estate now consists of her savings account ($1,000 at time of death) & her investments administered by an investment firm (approx. $40,000 total in her RRIF & cash accounts). With such a modest estate consisting only of monies & with me & my siblings not contesting anything in her Will, I am hoping that we can avoid the cost & time of applying for a Certificate of Estate Trustee/Probate. Her bank says they may consider a waiver of probate, but her investment firm has asked for probate. Can we, instead, offer to provide them with a waiver of liability (a Letter of Indemnity)? Thank you.

      1. says: Ioulia Vinogradova

        Hello Donna,
        Please accept our condolences for your loss. Generally, it is up to each financial entity to decide whether to accept a letter of indemnity/personal guarantee to secure that financial institution from potential creditors of the deceased from the estate trustee.
        Based on the amount you indicated in your mother’s estate, a formal court appointment of you and your sister as the estate trustee just to provide the financial institution with protection against creditors is not reasonable. Although there is no estate administration tax that would be owed by the estate, if your mother’s estate is under $50,000.00, the legal fees for the application to appoint you as estate trustee will need to be incurred.

        I recommend that you seek the financial institution to accept your personal indemnity and if you require our assistance in communicating with the financial institution, please do not hesitate to contact me directly at ioulia@hummingbirdlaw.com.

    15. says: Nick

      Is there Probate on the Principle Residence of a deceased individual who has left the asset to their children via a will and who no longer has a spouse to have had a deemed transfer? Also, if that is the only asset is a clearance certificate required?

      The asset was sold shortly after death. My understanding is the asset is deemed disposed at time of death and capital gains tax would only be paid if there was a gain on the value of the asset from time of death to the date the asset was sold. How would this be determined?

      1. says: Amy MacAlpine

        Hello,
        There are separate issues here. Probate is one process that you may have to go through to have the Executor appointed in order to transfer the property via the Will. There is a chance that probate is not necessary depending on a few land title exceptions.
        Capital Gain does not apply to your primary residence.
        Clearance Certificate is regarding CRA stating all of the deceased’s taxes (income or otherwise) are paid and all assessments are final.
        We are happy to assist you with a consultation to determine if probate is necessary.

    16. says: Karen

      Hello,

      My mother in law passed away in Nov 2019. After her death we filed The Estate Information Return with the Ontario Ministry of Finance and paid the Ontario Estate Administration Tax that was owed on her estate. In the summer of 2020, we sold her house and it sold for more than was listed on the Real Estate in Ontario section of the Estate Information Return.
      What happens now that we sold her real estate for more than what was recorded at her time of death? Do we owe Estate Administration Tax on the appreciation?
      Do we need to refile another Estate Information Return, showing the increase in value?

      Thank you for your time

      1. says: Amy MacAlpine

        The Estate Administration Tax is based on date of death values. Therefore our interpretation of the current EIR filing rules, the sale would not require an amended return. We do note that the EIR is evolving and changes are expected in the future. We anticipate that previous estates would be grandfathered from any future change.

    17. says: Chris

      Hi Amy,
      I’d like clarification of my situation and whether probate is required.

      I am the sole beneficiary of my mother estate as stipulated in her will. I am also her POA for both health and financial and have been managing all of her financial obligations for the last 7 years. My mother’s only asset is cash which I have access to thru her bank account. I pay all her expenses thru this account and have been thru use of her online access. This is not a joint account. The value of her assets is under $30,000. There are No other assets.

      My question is, do I need to request and go thru the probate process in this situation?

      Thank you,

      1. says: Amy MacAlpine

        Hello, based on what you describe you most likely will be able to request the bank to waive any probate requirement after her death for the remaining funds. However, since this is a bank decision, I can not guarantee success.

    18. says: Vivienne

      My daughter in law’s mother has just passed away. She had been very ill with cancer and then a brain tumour for a number of years now and my daughter in law and my son looked after her all that time. They also looked after the house and my DIL’s father. During this time they missed an opportunity to buy another property in order to stay with her. The will was made many years ago and stipulates that the house asset be split between the 3 siblings. This would mean that my DIL will receive no compensation for all the years she cared for her mother plus, she, my son and their two daughters will have to leave their home. Do they have any options? Thank you.

      1. says: Amy MacAlpine

        Hello and thank you for your question.
        There are two possible avenues we can look into.

        1. Whether they contributed financially to the home maintenance or mortgage.
        2. Whether they were acting as Power of Attorney taking care of the parents.

        If so, it may be possible to recover from the estate in addition to the 1/3 share of the house.
        If they are interested in further discussing with me, they can email me directly amy@hummingbirdlaw.com

        Thank you, Amy.

      1. says: Amy MacAlpine

        If you are in Ontario, and a Certificate of Appointment is not issued, then technically the Executor does not have the legal authority to evict. Further, under current COVID restrictions, all evictions are suspended.
        Amy

      1. says: Amy MacAlpine

        There is not one general registry, however, you can do individual searches at each superior court.
        We have people who assist us in doing these searches. If you are interested you can email me directly at amy@hummingbirdlaw.com

    19. says: Alexandra

      I rent a condo from someone who recently passed away. The property has not gone to probate yet, so can the beneficieries evict me? can i continue renting the property until it clears probate?

    20. says: perry

      Hi,
      If in the will it is stated that “my spouse and I are jointly owned our house, which has been our primary resident”. Therefore I request that this property pass directly to my wife”, does that mean that there is no need to pay for probate fee?

      In general, if people are in a long term marriage and one person dies, is it true that in such a case there won’t be any need for probate fee?
      I think this is one of the common questions people have when they search for probate tax.

      1. says: Amy MacAlpine

        If the house is only in dad’s name, and in Ontario, then most likely probate is required. There is a rare exemption that could apply, but we would have to pull and review the Land Title Registrar Parcel to determine if this is possible.
        If the exemption is not available and only dad’s name is on the title, we will have to go through probate to transfer the property to mom. The will does not prevent this.
        Please let me know if you have any other questions and if we can further assist you.

    21. says: Mandy

      My dad died September, 2019. There are three executors nominated in the 25 year old will, myself, my younger brother, and my dad’s common law wife of 34 years. The will was common knowledge, and discussed opening in my dad’s home. His common law wife was to get the pensions and death benefits. My brother and I were to split the personal property (stuff) and split the real estate – my dad’s home. The will has not yet gone to probate. I’m here in Ontario cleaning up the house, and sorting the stuff. My brother and I have gone through and decided what we would each like, and what is for donations, and trash. We have had the contents appraised. Can I take what I have chosen, and get all the garbage gone? I’d like this to happen prior to any appraisals.

    22. says: Cheryl Goering

      Good afternoon,

      My mother-in-law (widowed) passed away from covid-19 in April 2020. My husband had been estranged from his family for many years. His sister was made POA when their father passed 10 years ago. His sister talked her mother into giving her $80,000 to buy a house so she could leave the nursing home and live with her. She never left the nursing home. His sister has not registered at the probate office and won’t answer my husbands calls or messages. The mortgage was (co-tenant). We don’t know who the lawyer was that prepared the will. Is there anything we can do to see if my husband is in fact a beneficiary?
      Thanking you in advance!

      1. says: Amy MacAlpine

        Hello and thank you for your message.
        Yes, we can file a notice at the courthouse for them to advise you if anyone applies to be the executor.
        In case she put the assets in joint name and there will be no probate, I also suggest having a lawyer draft a demand letter asking her for information and a copy of the will.
        If you are interested in these services please email directly at amy@hummingbirdlaw.com.

    23. says: Sarah

      Is there a way to check to see if Probate Certificate was granted and how long ago when the Executor (a legal firm) isn’t very willing to provide information to the beneficiaries or when or what they are actually receiving, other than it’s being split equally between beneficiaries as stated in the Will.

      April 2019, my Mother received a Notice of Probate (Is a longer name now). She was named as a beneficiary of a gift from her uncle who passed away in late July 2018, and the will stated all assets to be liquified and split evenly to recipients.

      Now I know it can take up to 14weeks depending on where you live in Ontario for Probate, which would have been end of July/Early August 2019.

      At this point, at the end of the month, it will have been 2 years since my Great Uncle Passed away, and my Mother and her sister are wondering what is going on as they haven’t heard anything, other than last September (2019) being verbally told by one of the office ladies that it will all be resolved soon.

      At what point should they be worried that the Trustee of the Estate is taking too long or not handling it properly or withholding any payments, especially when it is well known that certain beneficiaries are actually sick with cancer.

      What would be the appropriate steps be to take? Write a letter detailing concerns, and noting that they’ve technically had the “Executor’s Year” and ask for an accounting?

      Thank you for taking the time to read and respond. Very much appreciated.

      1. says: Amy MacAlpine

        Hello and thank you for your question.
        Yes, we can have someone go to the court and do a search, however, the Notice should provide you with what you need.
        Did you receive a copy of the entire will?
        Please scan me directly the will and Notice and I am happy to review it with you. Please send to amy@hummingbirdlaw.com

      1. says: Amy MacAlpine

        Hello and thank you for your question!
        In Ontario, a beneficiary of a will is entitled to see their portion of the will that provides the gift.
        If you are entitled to share in the “residue” (the net amount at the end) then you are entitled to see the entire Will.

    24. says: Laura

      Hi, my mother passed and was listed on title as owner of the property her any my father lived at for 45+ years. Does my father need to include this property in the probate assets?

    25. says: Laurie

      My father passed away a 3 weeks ago, my Aunt is executor/trustee of his will. He had 2 vehicles that he did not mention in the will. we ( his 3 children who are his sole beneficiaries) have agreed that 1of my brothers is in need of 1 of the vehicles and have asked her to put it in his name but she has said she is not able to and that he will need to basically buy it from the estate with his inheritance, however she is now saying she will transfer ownership to herself and May use these vehicle/s until the time the estate is settled? Our father in his will specifically stated that the “trustee is to transfer his home to my brothers And I in equal shares jointly”. She (executor-trustee) has made the initial move to list the home for sale without consulting us. She is also gifting items from within his home to others while telling us his children we are not to remove anything until she has evaluates its contents. I would like to know where we as his children and sole beneficiaries stand as far as rights go.

    26. says: Mark

      My mother has just passed and all of her assets are either in a bank account or GIC under a TFSA. She was in a Long term care facility, so she had no other assets. What is the process for probate when assets are liquid such as this? Does this speed up the 1 year process? She has a will with my sibling named as executor, and there will be no disputes amongst the named beneficiaries (or anyone else).

      Thanks

    27. says: Julie

      Hi my father just passed and there is no will or executor he has been separated from step mom 5 years she contacted me and she wants nothing to do with dealing with his estate and wants to revoke all responsibility to me is she able to draw up a letter stating this and get a witness to sign and also would need to be notarized would this be ok. Julie

      1. says: Amy MapAlpine

        Hello and thank you for your email.

        Do you need to apply for probate? Did he die owning assets that now belong to you and any siblings?

        Getting this statement from her is a great start. It is possible that she may need to sign a specific court form if you are applying to probate.

        I am happy to clarify upon knowing your situation and needs. Please email me directly at amy@hummingbirdlaw.com

        Amy

      1. says: Amy MacAlpine

        While there is no strict rule, an Executor has responsibilities to creditors, taxes, etc and the beneficiaries to take care of the estate.
        You could be found responsible for any loss the estate incurs for delay. We are happy to assist you with this process. Please contact amy@hummingbirdlaw.com

    28. says: N

      hi,
      I am no longer in touch with ‘family’ on account of physical and mental abuse throughout my years of being a part of that.
      Its fine, I’m grateful that I am in a better position, but remember the biological woman who bore me, tell me she had a life insurance policy on me. I don’t recall ever knowing about this policy she has on me.
      I think that I (or anyone for that matter) should have a right to make sure someone they are not in connection with not be allowed to make themselves beneficiary’s off of someone’s death. Especially if they are not in connection with or have been cruel and manipulative to enforce these unknown policies on someone.
      How can I get these policies on me terminated or removed or see that the beneficiary does not get anything upon my death.

      1. says: Hummingbird Lawyers

        Hello,
        Thank you for your message.
        Please contact our Wills and Estates lawyers for further assistance with this matter.

    29. says: Helen Gale

      After letter of probate received person died 2 yrs prior a income interest from Canadian sources comes in can the beneficiary pay this, instead of adding to the estate which is pretty much final now, and monies to beneficiary on the way.

      thank you

      Patricia

    30. says: Marya Morin

      my mother passed in 2013 in Ontario.Before her death, my oldest brother took advantage of her frail mental condition and transferred most of her assets into his accounts. Her legal will states all three surviving children receive a fair share of everything, but named him executor.I was unable to see her will until many months after her death and we all knew she had in excess of 250.000 in several bank accounts. My brother had her sign a piece of notepaper in garbled, three languages leaving everything to him. He took everything.I could not afford the thousands it would cost to fight him in court. is there anything I can do.

      1. says: Hummingbird Lawyers

        Sorry to hear about your situation. If you would like to set up a consultation with us, please give me a call at 905-731-1911 to talk to our Wills & Estates lawyer.

    31. says: Stacey C

      Hello,
      My mother passed away Dec 30, 2019, with a will that names me as the executor.
      We are/were joint tenants on our house, so I believe that bypasses probate as right of survivorship (as it is my primary residence). Her financial assets are in the form of TFSA and Annuity with me as named beneficiary. As there are no other assets do we still need to go through probate? (all beneficiaries are aware of what is in the will and no one is contesting the will).

      1. says: Amy MacAlpine

        Hello!
        Thank you for your comment.
        If you are in Ontario and the house is owned jointly (NOT tenants in common) then it would pass through right of survivorship.
        If there are no other assets, other than designated ones, then there should not be a need for probate.

        Amy

      2. says: Lynn

        We are dealing with passing of dad a year and a half ago. Mom still alive with dementia. So we (sister and myself) left to take care of mom. My issue dad had a will, set a trustee to handle as my father had told us all mom’s financial needs. Mom has received nothing. No cpp no beravement, no funeral costs, absolutely zero. Mom only gets her old age which hardly helps.life insurance not paid. While I thought trustee should be taking care of this it seems to not be happening. My sister called cpp to get it started, they want trustee to do it. She called for life insurance, again they asked for trustee. She called trustee but never talks with him. What do we do? My sister against my wishes has paid rent at mom’s nursing home. Now no money. Should we send bill to trustee , we do not want him taking from inheritance when money should be coming more then enough from government if thy had been processed. Can you guide us please ?

        1. says: Amy MacAlpine

          Hello and thank you for your message.
          We can absolutely assist you. Please forward me, the names of all the people involved so that we can perform a conflict check before discussing further.
          Please send directly to my email amy@hummingbirdlaw.com

    32. says: Suzanne Nicholas

      If you have to go to probate strictly to clear out a few bank accounts whereby all other assets have been dealt with, where do you submit the forms to move forward….can we do it ourselves.

      1. says: Amy MacAlpine

        Hello and thank you for your comment.
        It depends on how much money and whether the bank will accept a waiver of probate.
        If so, you can potentially do it yourself. If you have any questions and need assistance, we are here for you.
        Amy

    33. says: John Halonen

      My Father died in 1998 and at that as the Estate trustee, I chose not to probate the will due to the additional expense and the uncertainty of future benefits.
      Am I now required to probate even when the uncertainty continues.

    34. says: Joan

      My mom passed away this year, her estate went to probate, everything was done accordingly. There is one beneficiary who wants an accounting of her estate for the past 14 years, and won’t sign the release,what is the next step as executor?

      1. says: Amy MacAlpine

        Hello and thank you for your comment.
        An Executor should provide an accounting for the estate. You can do this informally to help reduce costs.
        Please let us know if you require additional support and help.
        Amy

    35. says: Marcais Bowen

      Thank you.

      One question I did have is, when your assets are frozen in your estate, are you able to use your assets to pay the estate administration tax?

      Is a life insurance policy necessary to pay the estate administration tax or will it just expedite the entire process?

      1. says: Amy MacAlpine

        Hello and thank you for your comment.

        When assets are frozen, if it is available cash, the bank will typically assist in issuing a cheque directly to the Minister of Finance from the assets. A life insurance policy made payable to a person could be used, however, they technically have no obligation to use the funds to pay for the EAT. If you make the Estate the beneficiary, the funds would be stuck until a special account is opened which typically can not be done until someone is appointed. (After the EAT is paid).

        We are happy to answer any other questions. Feel free to contact me directly.

        Amy

    36. says: Frances Meg

      My Aunt died on 1st January 2018 in Ontario. She left a will which I am joint executor. Myself and other beneficiaries have had two payments paid to us but are still waiting on the remaining funds being paid and the estate being finalised. It is now nearly two years since she passed. Should this have taken this long? The law firm dealing with it said it was common to take over two years.

    37. says: Jimmy Jones

      Great info! My mom just died and my siblings won’t show me the will that I’m named in. Should I be worried? There is significant assets. Who is executor? I don’t know and the clock is ticking on a looming recession. I can force a probate hearing to appoint the executor? She had a legal will I’m told.

    38. says: Brian

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

      1. says: 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.

      1. says: 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.

    39. says: 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.

      1. says: 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.

    40. says: 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?

      1. says: 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.

    41. says: 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.

    42. says: 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.

    43. says: 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?

      1. says: 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!