Probate Guide Ontario [Paperback]

- Save thousands of dollars in legal fees - Probate an uncomplicated estate by yourself - Prove the legal validity of a will - Understand the process of distributing the estate

When you probate an estate, you prove by a legal process that a will has been validly made and executed. This may sound complicated, but it isn’t. It is actually possible for you, the layperson, to probate an estate —if it is not subject to taxes or other technical complications. Furthermore, you can save thousands of dollars in legal fees. This is no exaggeration, as a lawyer will normally charge 2% of the gross value of an estate for probate fees. This means that for a $100 000 estate, you would be charged a fee of around $2 000.

With this revised and updated guide, and the package of forms available from the publisher, you can successfully probate an estate yourself. Even if you are not planning to probate an estate, this book will serve as a useful guide in discussions with your lawyer.

Here are some of the topics that are explained in this book: - How you save money by doing it yourself - The power and duties of estate trustees - What forms are necessary and how to complete them properly - How to apply for and obtain a Certificate of Appointment of Estate Trustee - What all these documents and terms mean - The actual mechanics of probate procedure - How an estate is divided if there is no will - How to assess the value of the deceased’s assets - How to advertise for creditors - What to do about out-of-province assets - How to transfer the assets of the estate to the rightful beneficiaries - The rights of common-law spouses and illegitimate children - What to do after you receive your Certificate of Appointment of Estate Trustee - What benefits survivors are entitled to under the Canada Pension Plan

David I. Botnick graduated from Osgoode Hall Law School in 1981 and was called to the Bar of Ontario in April 1983. He is currently a partner in a law office in northwest Toronto, where he practises largely in the areas of family law, wills and estates, real estate, and personal injury. He has written booklets and newspaper articles on various legal topics of interest to the general public. His goal in his writing and in his practice is to make the law understandable and useful for everyone. He is also the author of Wills for Ontario and Marriage, Separation, and Divorce, two other titles in the Self-Counsel Series.

ALL ABOUT PROBATE

a. WHAT IS PROBATE ANYWAY?

The simple definition of probate is the presentation to a court of the will of someone who has died for approval of it as the valid last will and testament of the person who made it. Lawmakers are concerned that the true final wishes of a deceased person be acted upon after his or her death. Therefore, they require that a court preside over the distribution of a deceased's assets.

The court also confirms the appointment of the person or persons who have been named in the will to carry out its directions.

If this person is a woman, she is called an executrix in the will. If a man is named, he is called an executor. Their duties are the same. The terms personal representative or estate trustee include both executor and executrix, and are used interchangeably here.

The personal representative is responsible for what is called the administration of the estate. Administering the estate means following the deceased person's instructions in distributing and/or managing the estate's assets.

The document issued by the proper court and bearing a legal seal that confirms the validity of the will and the appointment of the personal representative is known as Certificate of Appointment of Estate Trustee With a Will.

Sometimes problems arise regarding the validity of a will as, for example, where the person who made the will may not be of a sound mind at the time the will was made. In addition, if it appears that the will was not properly witnessed (in cases where witnesses are required) or that the person who made the will was under the age of majority (18 in Ontario), the court will not confirm the will as a valid document. In that case, the estate of the deceased will be handled as though the will had never existed.

On the other hand, if the will is confirmed as being valid, but the named personal representative is under the age of majority or is mentally infirm, senile, or generally unable to perform the duties of an executor, the will remains valid and governs the disposition of the deceased's estate. But it is then necessary for the court to name someone to administer the estate according to the provisions of the will.

In most situations, however, these problems do not arise. The will is approved by the court as a valid will and the personal representative named in it is confirmed at the same time.

It should be noted that probate neither validates the will nor affects the appointment of the personal representative named. Probate merely confirms the validity of the will of the deceased and confirms the appointment(s) already made.

b. WHICH COURT DEALS WITH PROBATE?

The Superior Court of Justice deals with applications for probate and related estate matters. The Superior Court has court offices in each of the counties, districts, and regional municipalities in Ontario. All references to the court in this book should be taken to mean the local branch of the Superior Court of Justice.

c. WHO APPLIES AND WHERE?

The application for probate is made to the court of the county, district, or regional municipality in which the deceased has his or her fixed place of abode at the time of death.

If the deceased had no permanent home anywhere in Ontario, it is still possible for an application to be made to the court of the county or district in which the deceased had assets or owned property at the time of death.

However, the more common situation is where the deceased died with a permanent residence somewhere in the province of Ontario. In that case, it is only necessary that the location of that residence be found out and application be made to the court in that county, district, or regional municipality.

The application for probate is made by the personal representative named in the will of the deceased. It is not necessary that the forms be completed by a lawyer. In simpler estates there is no reason why the personal representative named cannot successfully fill out the necessary application forms and submit them to the court. The benefit of doing so is, of course, to save the estate the expense of retaining a lawyer.

Applying for probate in Ontario involves filing various documents with the court and paying court fees. Unless questions arise as to the validity of the will or the capacity of the executors to act, no personal appearance is required in court.

The various forms are simply completed and submitted to the office of the clerk of the court, where they are checked and the court fees are paid. Once this checking procedure has been completed, the documents are submitted to a judge who formally issues probate. This document is then mailed out to the applicant.

Needless to say, there are various steps throughout the administration of an estate that may require intermittent services by a lawyer. But, when you reach such steps, there is no reason why you cannot retain a lawyer for those specific purposes only.

An example of this is preparing notarized copies of the probate documents. In order to have documents notarized, it is generally necessary for you to appear before a lawyer or a notary public.

If there are beneficiaries named in the will who have not reached the age of majority (18 in Ontario), the administration of the estate may prove too difficult for a lay person.

The complication in this case is that the share of the estate that has been left to anyone under the age of majority cannot be paid to him or her at that time but must be held in trust by the personal representative or in court (depending on the provisions of the will) until the child turns 18....