What Is Probate?

When people refer to Probate in Ontario, they are actually referring to a Certificate of Appointment of Estate Trustee With a Will or a Certificate of Appointment of Estate Trustee Without a Will. For simplicity, "Probate" will be the term used herein.

Probate is the Court procedure for:

• Formal approval of the Will by the court as the valid last Will of the deceased; and

• Evidence of the appointment of the person who will act as the Executor (in Ontario, this person is called a "Trustee") of an estate.

Is Probate Required?

The executor's authority is derived from the Will itself and not from the Certificate of Appointment issued by the court. An executor has the legal authority to deal with the assets of the deceased from the moment of the testator's death; however, Probate is usually required as evidence acceptable to third parties, such as financial institutions and others holding assets or income of the deceased, that the executor named in the Will has the authority to act.

If the deceased died without a Will or all of the executors named in the Will are unable or unwilling to act, Probate is required. In this case, the authority stems from the Certificate of Appointment itself.

Probate may not be required in your particular circumstance. Estates that do not involve real estate or significant financial assets may sometimes avoid probate.

If the estate involves real estate, there may be an exception to the Probate requirement available. A search of Title to the subject property would be required in order to determine if an exception is available.

If a financial institution (e.g., a bank) tells you that they require Probate in order to release assets, then probate is required. Some banks will occasionally waive Probate for small estates when there is no obvious conflict among beneficiaries; however, they cannot be forced to release assets without Probate. It is entirely at the discretion of the financial institution. Each financial institution has its own policies. If the financial institution agrees to waive probate, they will almost certainly require the beneficiaries to sign documents agreeing to indemnify the financial institution from any potential claims.

You cannot avoid probate simply because:

• The estate is small,

• All beneficiaries agree,

• There is only one beneficiary, or

• The only assets are bank accounts or investments.

How Long Does Probate Take?

A Court Application must be made in order to obtain Probate. To file the application, it takes some time to prepare the necessary documents. We will need documents and information from you, but if you are diligent, the application can usually be prepared and filed quickly. We work with our clients to prepare and file as quickly as possible.

Once the application has been prepared and filed, it takes time for the Court to process the application. The amount of time required varies widely depending on the Court where the application was filed. Applications in Toronto and the GTA usually take several months, with processing times ranging from 4-6 months. The application must be filed in the Court where the deceased resided, so unfortunately you cannot simply choose to file the Application in a faster Court.

For more information about your particular situation, please do not hesitate to contact my office.