Probate Law
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
- What Is Probate (Definition)?
- Probate Taxes In Ontario
- What is Estate Information Return?
- Legal Cost for Obtaining a Certificate of Appointment
- What is my “Estate”?
- Letters of Probate
- I do not know if there is a will, what do I do?
- 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 go through a process.
Probate In Ontario
Probate in Ontario, or probate administration, is the process for obtaining the legal authority to act on behalf of the estate, collecting the assets, paying the debts, and distributing the assets properly.
When a person applies to the court to be the Executor, they obtain 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.”
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.
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).
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.
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:
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.
- Cancel CAA: Here is a link to help you contact CAA after someone dies.
- 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:
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!
Legal Cost for Obtaining a Certificate of Appointment
Certificate of Appointment of Estate Trustee with a Will applications starts at $4500, plus disbursements and HST. Costs for legal additional counsel, support and/or administration services are determined on a case by case basis.
Probate Lawyer Cost
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.
**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:
- 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.
Probate Lawyers
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
Action Plan
3 Steps to Get Going- Review the information on this page.
- Contact Hummingbird Lawyers – 905 731 1911 | info@hummingbirdlaw.com or Amy MacAlpine at 905 731 1911 | info@hummingbirdlaw.com
- Know that we got you covered.
Additional Resources
- FAQs about Estates answered by the Attorney General
- What is the Administration Tax on?
- View Amy’s Blog
- Inheritance rights
- Inheritance
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.
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.
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?
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.
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
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.
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,
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.
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.
Hello and thank you for your question.
There are two possible avenues we can look into.
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.