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What is Probate?

“Probate” refers to the procedure for confirming the validity of a will and the appointment of the person named as estate trustee.  It entails presenting the will to the court for approval as the valid last will and testament of the deceased testator.

In Ontario, the terms “Letters Probate” and “Letters of Administration” were abolished in 1995.  The process of “probating” a will is now referred to as an Application for a Certificate of Appointment of Estate Trustee, with (or without) a Will as the case may be.  The document issued by the court is now called the, “Certificate of Appointment of Estate Trustee with a Will (or Without a Will).”

Since the term Application for a Certificate of Appointment of Estate Trustee with a Will is such a mouthful, the term “probate” is still regularly used and accepted.

The application is filed at the Superior Court of Justice in the jurisdiction where the deceased person resided.

Whether or not a probate application is required depends on numerous factors.  Some main considerations are as follows:

  1. Whether assets are held jointly. For instance, a home held by spouses jointly passes to the surviving spouse by right of survivorship upon the deceased spouse’s death (with no need for probate)

  2. Whether assets have beneficiary designations. Assets such as TFSAs, RRPS and RRIFs, life insurance and pensions have named beneficiaries and pass to the named beneficiary without the need for probate when the owner of the asset dies.

  3. The value of assets held by the deceased. In some circumstances, if a person died with assets of little value, probate may not be required.

  4. Lawsuits. It may be necessary to probate a will in order to bring, defend or continue a lawsuit on behalf of the estate.

It is important to note that each case is fact specific and there are therefore no general all-encompassing rules.   It is advisable for anyone named as an estate trustee to speak with an experienced estates lawyer to discuss estate administration issues, including whether probate is required.  Thanks for reading,

Jason