Probate 📝

Author: Warren Gilmore - Law Student
Edited By: Ryan Carson

In the province of Ontario, the only individual that is legally permitted to oversee the distribution of one’s estate is referred to as the “estate trustee”. The vast majority of Wills in Ontario go through the procedure of probate, with the exception of Wills where the entirety of the estate is held jointly, typically between a husband and wife. When an estate is held jointly the surviving spouse would absorb the interests of the deceased spouse, this allows the estate to steer clear of the probate process.

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Probate is a judicial process that involves petitioning a court to do one of several things regarding the estate of a deceased individual.

  •   First, a court can be petitioned to provide an individual with legal authority to administer one’s estate, recognizing them as the estate trustee.

  •   Second, a court can be petitioned to affirm the legal of authority of an individual who has been named as an estate trustee in an individual’s Will.

  •   Third, a court can be petitioned to formally recognize an individual’s Will as their valid and legally binding Last Will and Testament.

Should the court approve a probate application pursuant to any of the grounds mentioned above, the applicant is then issued a Certificate of Appointment of Estate Trustee. This certificate provides the applicant with the legal means to act in administration of the deceased individual’s estate.

There are a multitude of reasons why individuals might apply to a court for a probate certificate. Some of the most common reasons involve situations where:

  •   The deceased individual died without a legally binding Will in place.

  •   The deceased individual’s Will fails to properly name an estate trustee.

  •   A bank or other financial institution requires proof of an individual’s legal authority to administer the estate of the deceased.

  •   The deceased individual holds assets, including real property, that are not encumbered by any survivorship rights of a third party.

  •   There exists some contention over who the estate trustee ought to be.

  •   There exists some contention with regard to the legal validity of the Will.

Cost tends to be a major concern for individuals considering probate. Typically, the costs of your particular probate application are dependent on the size of the estate at issue. As such, it becomes extremely important have an accurate understanding of the various assets and liabilities that make up the estate.

The entire probate process can be rather time consuming. Applications can take up to three months to work their way through the judicial process. This timeline can be extended even further if the application involves challenges to the Will. Having an experienced lawyer in your corner is essential to ensuring that this process goes as quickly, and as smoothly as possible.

Probate can seem overwhelming to individuals unfamiliar with its procedures. As such, it is always advisable to have an experienced lawyer walk you through the entirety of the probate process. At Carson law we have extensive experience successfully guiding clients through this delicate process.

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The content on this web site is provided for general information purposes only and does not constitute legal or other professional advice or an opinion of any kind. Users of this web site are advised to seek specific legal advice by contacting members of Carson Law, Carson IP, or their own legal counsel regarding any specific legal issues. Carson Law does not warrant or guarantee the quality, accuracy or completeness of any information on this web site. The articles published on this web site are current as of their original date of publication, but should not be relied upon as accurate, timely or fit for any particular purpose.