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 in Ontario, where needed.  Although still commonly used, in Ontario the term "probate" stopped being officially used on April 1, 1995 (no joke…). This is when Ontario introduced the Estates Administration Act, 1995, which replaced the Estates Administration Act, 1990. The new law was introduced as part of wider reforms designed to streamline and update estate administration in Ontario.   The new Estate Administration Act replaced the term "probate" with "Certificate of Appointment of Estate Trustee". The new term reflects the replacement of “executor” or “executrix” with the term "estate trustee". In this article we will not refer to “probate”, rather we will use the proper term “Certificate of Appointment of Estate Trustee” or “Certificate”. 

What Types of Certificates Can the Court Issue? 

There are a number of Certificates that the court can issue. For the purpose of this article, we will address the two types most commonly issued and that beneficiaries of an estate are likely to deal with, which are: 
  1. Certificate of Appointment of Estate Trustee With a Will. This type of Certificate is issued when the deceased left a valid will, and the named estate trustee applies to manage the estate.
  2. Certificate of Appointment of Estate Trustee Without a Will. This type of Certificate is issued when the deceased dies intestate (without a will), and an eligible person (often a spouse or next of kin) applies to be estate trustee.
Clients often ask, what is the process to obtain a Certificate, with or without a will. Below we answer some of the most common of these and provide some helpful guidance.

What is a Certificate?

Obtaining a Certificate 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 a Certificate be Obtained? 

In Ontario, a Certificate is not required in every circumstance, and not every estate trustee must go through the appointment process.  A Certificate is needed where: 
      • Court approval is required in order to validate a will; 
      • There is a dispute over estate trustees (e.g. the will does not name an estate trustee or there is a debate over who the estate trustee(s) should be); 
      • Some beneficiaries named in the will are not able to provide legal consent; 
      • Proof of an estate trustee’s authority is required (e.g. a land registry office who needs a Certificate before land can be transferred from the deceased’s name into the name of someone else). 

How Much Does the Court Charge When You Apply for a Certificate?

In Ontario, the Estate Administration Tax (EAT) is calculated based on the total value of a deceased person's estate at the time of their death. The EAT is what is commonly referred to as the “Probate Fee”; this term is no longer formally used. No EAT is payable for estates valued at $50,000.00. For estates valued at over $50,000.00, the EAT is calculated at $15 for every $1,000 (or part thereof) of the estate's value exceeding $50,000.00. This amount translates to 1.5% of an estate’s value over $50,000.00. The Estate Administration Tax is taken from the estate before any assets are distributed to beneficiaries. 

How Long Does it Take to Apply for a Certificate? 

An 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 last 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 a Certificate is obtained, it is the estate trustee’s responsibility to administer the estate. In general, the rule of thumb is that an estate trustee has one year to administer an estate (with some exceptions). 

Should I Consult a Lawyer? 

If you have been named an estate trustee it is advisable to speak with a knowledgeable estates lawyer as soon as possible, regardless of whether you believe the estate will be simple or straightforward. It is important that you fully understand the scope of your duties and obligations.  A lawyer will:
      1. Help you understand responsibilities;
      2. Highlight any risks and liabilities you must be aware of (including significant personal and financial liability);
      3. Help you gather all necessary paperwork and complete all relevant forms; and
      4. Provide guidance and advice throughout the probate and estate administration process.
Also, 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 and beneficiaries.  Call us at 416-847-3580 or contact us online to schedule a consultation.