Estate administration is the process of organizing and distributing the assets of an estate to the beneficiaries. The executor is responsible for estate administration, including going through the probate process, where needed.
We frequently hear similar questions from clients about the probate process. Below we answer some of the most common of these and provide some helpful guidance.
What is Probate?
Probate is the formal legal process through which the court:
- Grants a person the authority to act as the executor of an estate;
- Confirms an executor’s authority to act on behalf of the deceased;
- Formally confirms that the deceased’s will is their last will and testament.
When Should Probate Take Place?
Probate will not be required in every circumstance, and not every executor must go through the probate process.
Probate is needed where:
- Court approval is required in order to validate a will;
- There is a dispute over executors (e.g. the will does not name an executor or there is a debate over who an executor should be);
- Some beneficiaries named in the will are not able to provide legal consent;
- Proof of an executor’s authority is required (e.g. a land registry office who needs probate before land can be transferred from the deceased’s name into the name of someone else).
How Much Does Probate Cost?
In Ontario, probate fees are:
- $250 for the first $50,000 of the estate; and
- $15 for every $1000 thereafter (with no upper limit).
Where probate is required, probate fees are taken out of the estate before any assets are distributed to beneficiaries.
How Long Will Probate Take?
A probate application must first be prepared. To do this, all documents required must be gathered and the value of the estate must be determined.
Relevant documents will include:
- The deceased’s original will;
- Any supplemental document that changes or revokes the will or any part of the will;
- Proof of death (i.e. death certificate).
It may take some time to locate all of these documents. Once the application has been prepared it must be filed with the Ontario Superior Court of Justice in the jurisdiction where the deceased lived.
Once the application is filed, the Court will need time to process it. The length of time required will vary widely depending on which jurisdiction the Court is in and may take up to 6 months.
Once probate is obtained, it is the executor’s responsibility to administer the estate. In general, the rule of thumb is that the executor has one year to administer the estate (with some exceptions).
Should I Consult a Lawyer?
If you have been named an executor it is advisable to speak with a knowledgeable estates lawyer as soon as possible, even if you believe the estate will be simple or straightforward to deal with or if you think you understand the scope of your duties and obligations.
A lawyer will help you understand all of your various responsibilities, will highlight any risks and liabilities you must be aware of (including significant personal and financial liability), will help you gather all necessary paperwork, complete all relevant forms, and provide guidance and advice throughout the probate and estate administration process. A lawyer can also guide you through any will challenges or other challenges that you may face.
The highly experienced Toronto estates lawyers at Derfel Estates Law regularly advise trustees, executors, and attorneys on their responsibilities and obligations. We can work with you on a one-time basis and answer stand-alone questions that you may have regarding the administration of a will, estate, or about attorney duties, or we can provide ongoing advice and guidance for the duration of your role.
Call us at 416-847-3580 or contact us online to schedule a consultation.