Is probate always necessary? Find out when to Probate a Will

Not every Will needs to go to probate. A common question frequently raised our many clients and others is – does my loved one’s estate needs to be probated?

What is probate?

Essentially, probate is the process through which the court confirms a Will is valid and confirms the authority of the executors – the estate trustees – to deal with the administration of the Will. The executors’ authority is actually derived from the Will itself. The executors/estate trustees will be granted a certificate of appointment of estate trustee with a will by the court. This document provides proof to third parties, such as banks and other organisations, of their authority to act in the administration of the estate.

Obtaining probate where there is no Will is far more complex. This article only deals with estates where there is a valid will.

Does every estate need be probated?

No, there are a number of exceptions:

Joint property: if the estate comprises property held in joint names, probate is not required in respect of that property. Jointly owned property, for instance, the family home, passes automatically to the surviving spouse on the death of one of the parties unless it is owned as tenants-in-common (in which case the survivorship rule does not apply and probate will be required). This is referred to as a “right of survivorship”.

Joint bank accounts: these will pass automatically to the surviving account holder, by right of survivorship, provided that the account holders intended that the funds in the account were to be shared funds. In some cases where a child, sibling, other family member or friend of the deceased was on the account in order to assist the person to manage their finances, the rule of survivorship may not apply and the surviving person on the account may be deemed to hold the account in trust for the estate. If you are in doubt about how a joint account should be dealt with, you should seek immediate legal assistance.

Named beneficiaries: are any assets left under the Will to a named beneficiary? If so, the legal transfer of the property to the beneficiary can take place so long as the Death Certificate and relevant information and documentation is provided to the organisation holding the asset. Such assets may include life insurance policies, pension policies, registered accounts such as RRSPs, RRIFs and so on. Provided that these third parties do not require a certificate of appointment of estate trustee, the assets may transfer without probate.

When to Probate a Will?

The process of obtaining a certificate from the court costs from $250 for the first $50,000 of the estate and $15 for each additional $1,000 – with no upper limit. Avoiding probate can save the estate in fees and taxes – but many deceased estates where there is a valid Will must be probated, including:

  • When the estate comprises significant money and assets in the deceased’s sole name
  • When there is ongoing litigation involving the deceased that has not been resolved before the date of death
  • When land and real estate forms part of the estate

How can we help?

If you are an estate trustee or beneficiary and you are unsure whether to probate a will, contact the Estate Administration lawyers at Rogerson Law Group as soon as possible. We will take full details from you and advise you of the process that must take place to complete the administration.

Rogerson Law Group provides cross Border Estate Litigation services in the entire GTA including Toronto, Scarborough, Mississauga, Vaughan, Brampton, Richmond Hill, Etobicoke, and Barrie and surrounding areas with offices located in downtown Toronto, Barrie, and an associated office Ottawa.

Contact us: by either calling us at (416) 504-2259 or filling out the contact form online.

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