Probate is a court procedure to confirm the authority of an Estate Trustee named in a Will. Probate may be required when a deceased person dies without a Will or when the deceased person’s Will does not name an Estate Trustee. Probate may also be required if the deceased person owned real estate property that does not pass to another person by right of survivorship, a financial institution requires probate, or there is a dispute regarding the Estate Trustee or the validity of the Will.
Estate Administration Without a Will
When you die intestate (without a Will), your estate is divided according to the Succession Law Reform Act and is administered by the person(s) appointed by the Ontario Superior Court of Justice as Estate Trustee. The trustee can apply to obtain a Certificate of Appointment of Estate Trustee Without a Will (also referred to as a Probate Certificate) from the court. The order of preference to become an Estate Trustee when there is no Will is given as follows:
In addition, if you die without a Will, your estate trustee may be required to post a bond before the Ontario Superior Court of Justice issues a Probate Certificate. In these circumstances, our team can assist you in obtaining a court order to dispense with the requirement for a bond.
Estate Administration With a Will
A Will communicates your wishes after you have passed and gives directions to your Executor/Trustee (person responsible for administering your estate) on how you want to divide your estate. Once the Superior Court of Justice is satisfied that the Will is valid, they can issue a Certificate of Appointment of Estate Trustee (also referred to as a Probate Certificate).
A Certificate of Appointment of Estate Trustee is a document provided by the court that certifies the Will and permits the Executor/Trustee to administer the estate of the deceased. A financial institution may require this document prior to the release of any money to the Executor/Trustee. A lawyer will require a Probate Certificate before acting on any real estate transaction for property owned by the deceased which does not pass by the right of survivorship.
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