What is Probate?

Probate is the court procedure seeking formal approval of the Will by the Superior Court as the deceased's last valid Will.

A "Certificate of Appointment of Estate Trustee" is received once granted by the Court. The process of applying for the Certificate of Appointment of Estate Trustee (also known as Probate) gives the Executor formal authority to act on behalf of the deceased.

It is important to note: This is also the process, although with slightly different paperwork when there is no will and someone is applying to be named the Executor or estate trustee.

In cases without a Will, someone will need to apply through the probate process to be appointed as the estate trustee. In Ontario, the order in which people can apply for this role is predetermined and would require individuals renouncing their rights and/or consent to the person's appointment applying if the order is not followed.

When is Probate Required?

Probate isn't always required, but it is relatively common for most estates to be probated.

Some examples of estates requiring Probate:

  • The Executor wants to validate the Will for their protection
  • There is real estate held not automatically rolling to the spouse (minus first dealing exemption)
  • Registered Investments without a named beneficiary
  • Financial Institutions request it
  • No will, need to appoint an estate trustee
  • Disputes about who the Executor is, or beneficiaries are unable to consent on their own (people with disabilities or minors)

It is important to note that in many cases, Probate isn't required by law, but rather the banks where the deceased had assets will require it for their own protection before giving the Executor access to the estate's money.

The reason for this is that without going through the formal court process, the banks assume that the Will they've been given by the Executor is the most recent and accurate Will of the deceased.

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