Offices in Ottawa and Perth
(613) 722-1500

CONTACT US (613) 722-1500

Wills, Trusts and Estates

Probate Applications

To probate or not to probate is one of the most common questions we are asked. Before explaining whether or not probate should be sought, it is best to understand what probate is.

The “Probate” process, which is now called an “Application for a Certificate of Appointment of the Estate Trustee with [or without] a Will” in Ontario, is the Court procedure for the formal approval of the will by the Court as the valid last will of the deceased. It is also the confirmation of appointment of the person who will act as the Estate Trustee (formerly referred to as an executor) of the estate. This process gives the Estate Trustee the authority to act on behalf of the deceased.

The question of whether or not to file an Application for Certificate of Appointment is mostly dependant on the type of assets the deceased owned at the time of passing. If the deceased owned real property solely in their own name, or as a tenant-in-common, the Estate Trustee may have to submit an Application in order to transfer or sell the property. The necessity or requirement for an Estate Trustee to obtain a Certificate of Appointment for financial assets is governed by the financial institution and/or company which hold the assets.

If the deceased had assets, such as TFSAs and/or RRSPs/RIFs which name the estate as beneficiary and bank accounts and/or investments registered solely in his/her name without a designated beneficiary named, the Estate Trustee may have to submit an Application, depending on the value of such assets. The financial institution and/or company which hold the assets may, at its discretion, waive a requirement for a Certificate of Appointment. However, if the deceased had a significant amount of money in their estate, the financial institution/company will likely require a Certificate of Appointment to allow the Estate Trustee to access the deceased’s funds.

There are other, less common, reasons why an Estate Trustee may need to go through the probate process. For example, the Estate Trustee might have to finish litigating a lawsuit on behalf of the deceased; there could be a dependent who wants to make a claim against the estate; or there could be some question about whether the Will itself is valid or some of its terms may need to be clarified.

It is a good idea to get assistance from an experienced wills and estates lawyer to assist with the preparation of the Court documents for an Application and to provide the Estate Trustee with advice regarding the duties and responsibilities of an Estate Trustee in the administration of the estate. We have extensive experience with probate applications and can provide advice about whether probate is required at all and how to deal with primary and secondary estates

If you are an Estate Trustee, we would be happy to assist you with the application process and to provide you with advice during the administration of the estate.

Connect with our Team

Offices in Ottawa and Perth     (613) 722-1500

Related Service Areas

Estate Administration And Planning
Estate Litigation
Guardianship Applications
Living Wills
Powers Of Attorney
Preparing Wills And Estate Planning
Trusts

More Resources

Blog |
Business Law
By: 

Posted June 18, 2024

This is an update on my earlier blog posted in 2022 titled “New Requirements for Private Federal Corporations to Report Individuals with Significant Control Coming[...]
Blog |
Estate Litigation
By: 

Posted June 11, 2024

“For it is in giving that we receive.” –Francis of Assisi Many of us grew up hearing this mantra. Good people give back. Generous people[...]
Blog |
Real Estate
By: 
What is title? “Title” is a legal term for a person or company’s rights of ownership in a private property. This is different from a[...]
Blog |
Wills, Trusts and Estates, Business Law, Real Estate
By: 

Posted May 28, 2024

The recent announcement from the Federal Government regarding an increase in the capital gains inclusion rate for individuals, trusts, and corporations has sparked significant discussion.[...]
Blog |
Family Law
By: 
When couples part ways, the shared ownership of a matrimonial home often becomes a contentious issue. In Ontario, the law recognizes two forms of co-ownership:[...]
Blog |
Real Estate
By: 
If you are purchasing a home in Ontario, you likely know that you should retain a real estate lawyer to close the transaction for you.[...]

Subscribe to Our Newsletter

"*" indicates required fields

Name*
Consent*
This field is for validation purposes and should be left unchanged.