What is probate?

 

Understanding Probate in Ontario

Probate is a term you might come across when dealing with the estate of someone who has died. In Ontario, probate is an important legal process that can impact how an estate is managed and distributed. Here’s a brief explanation of what probate is and why it matters.

What is Probate?

Probate is the legal process wherein: 

1) A deceased person’s Will is validated by the court. It involves confirming that the Will is genuine and that the person named as the executor (the individual responsible for managing the estate) has the legal authority to handle the estate’s affairs. 

2) If there is no Will, the court appoints an administrator to manage the estate according to intestacy laws.

Why is Probate Necessary?

  1. Legal Authority: Probate provides the executor or administrator with official recognition of their role. This legal authority is necessary to deal with banks, transfer property titles, and manage other aspects of the estate.

  2. Ensuring Validity: The probate process helps ensure that the Will is authentic and that it reflects the deceased person’s true wishes. This step is crucial in preventing disputes among potential heirs or beneficiaries.

  3. Estate Administration: Once probate is granted, the executor or administrator can proceed with settling the estate. This includes paying off any debts, handling taxes, and distributing the remaining assets according to the Will or, if there is no Will, as per intestacy rules of the deceased's jurisdiction.

The Probate Process in Ontario

  1. Filing the Will: The executor submits the Will and a probate application to the court, along with necessary documents, such as a death certificate and the estate administration tax (more on this next post).

  2. Court Review: The court reviews the application and ensures that all required documentation is in order. If everything is correct, the court issues a “grant of probate,” which confirms the validity of the Will and the executor’s authority.

  3. Administration: With probate granted, the executor or administrator can access the estate assets and administer the estate - settle debts, pay taxes, and distribute assets.

  4. Finalizing the Estate: Once all debts and taxes are paid, and assets are distributed, the estate is considered fully administered.

Costs and Timeframes

Probate can involve court fees, legal costs, estate administration taxes and potentially other expenses. The time it takes to complete probate can vary depending on the complexity of the estate and whether there are any disputes. Simple estates might be settled relatively quickly, while more complex ones could take longer. 

Many people mistakenly think that probate is not required when there is no Will - this is not the case, and in fact, the probate process is more costly and time consuming when an estate has to go through the probate process without a valid Will. 

Is There a Way to Avoid Probate?

In some cases, assets can be structured in a manner that will not require probate. Estate lawyers work with clients at the planning stage to minimize, or if possible avoid, the application of probate on applicable assets and to provide planning advice. In some circumstances, it may be more appropriate to go through probate. Consult a lawyer for more. 

Bottom Line

Probate is a crucial step in managing and distributing a deceased person’s estate in Ontario. It ensures that a Will is valid, grants legal authority to executors or administrators, and helps to orderly settle the estate. While the process can involve costs and take some time, it provides a structured way to handle an estate and ensure that the deceased’s wishes are honored.

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