Estates Lawyer Services

The Importance of an Estate Application

An estate application offers protection to the personal representative as well as third parties. However, it is not required in all instances. It depends on the type and nature of the estate assets being administered, including whether or not the deceased person had a Will. Please contact our office directly to determine whether an estate application is required in your case.

Estate applications are possible with a Will (known as certificate of appointment of estate trustee with a Will or formerly, as probate) or without a Will (known as certificate of appointment of estate trustee without a Will or formerly, as administration).

If a certificate of appointment of an estate trustee is not obtained, it is likely that third parties (such as financial institutions) will refuse to transfer any of the deceased’s property upon the personal representative’s request. The reason is that they have no way of knowing what the true intention of the deceased person is, whether the Will is, in fact, the last Will of the deceased, and whether the Will is, in fact, valid.

By obtaining a certificate of appointment of an estate trustee, the third parties are assured that they are acting further to the deceased person’s interests.

Certificate of Appointment of Estate Trustee with or without a Will

In Ontario, an application for a certificate of appointment of an estate trustee with a Will (formerly known as probate) is the process in which the personal representative brings the deceased’s last Will to the Ontario Superior Court of Justice for approval. The court will then approve the Will and the personal representative (formerly known as the “executor”) and issue a certificate of appointment of estate trustee with a Will unless someone challenges the validity of the Will presented to the court.

An application for a certificate of appointment of an estate trustee without a Will (formerly known as administration) is the process that the personal representative will follow when the deceased person does not have a valid Will. In the course of this process, the personal representative will file various documents (including affidavits) with the Ontario Superior Court of Justice to obtain a decision on the division of assets and payments of debts of the deceased.

Estate Administration Tax (formerly known as “Probate Fees”)

Generally speaking, the estate administration tax (formerly known as probate fees) is charged on the gross value of the deceased’s estate as indicated in the “Value of Assets of Estates” provided by the personal representative to the court. The gross value is usually calculated by taking all the assets’ fair market value and subtracting only liabilities secured against real property (such as a mortgage). This tax is payable when the personal representative files an application for a certificate of appointment of the estate trustee with the court. As of January 1st, 2015, the personal representative must file the Estate Information Form within 90 days of obtaining the Letters of Administration.

If you are interested in preparing an estate application or would like additional information, please contact us by email at info@davelaw.ca or telephone at 289-444-5605.