Probate vs. Estate Administration — Say What?

Published on 29 August 2022, 07:22:56 AM

Business Law Family Law Notary Public Probate Law Real Estate Law Uncategorized Wills & Power of Attorneys

Draft will, revoked will, final will — it can be confounding. Being an estate trustee is no small task. Time to settle in for a quick lesson on probate process vs. estate administration.

First Things First

You agreed to be estate trustee years ago. Now you don’t know where to start. First things first. You’ll need to have a probate court approve the deceased’s last will and testament and your appointment. You could do it yourself — it’s complicated — or hire a probate lawyer.

But is It the Right Will?

That’s easy enough or is it? You might make multiple personal wills in your own lifetime. The same is true of most will makers. Marriage, divorce, having children — they all require changes to a will. Some divorcees even write the ex right of their will. What’s an estate administrator to do?

One Will, Two Wills

One will, two wills, right will, new wills: it’s not uncommon in Ontario to have an individual will for assets like life insurance or RRSPs with designated beneficiaries. That’s because assets with designated beneficiaries can be passed to heirs without being probated. A second will could be just for property and personal possessions. 

Finding the Final Will

So where do you find the final will(s) and testament(s)? Next-of-kin often have copies or the deceased’s personal lawyer. If it’s in a safety deposit box at a bank or credit union, you’ll need to prove you’re the estate administrator to access it. Otherwise, you can search local courthouses where the deceased lived or for pre-1976 wills, the Archives of Ontario.

Got It, Now What?

Probate, probate probate. You’re off to court to get the last will formally approved and your appointment confirmed. Ontario probate courts have to validate that a will is actually the deceased’s last, otherwise it won’t be legally valid and could be overturned by heirs. Your appointment as estate trustee (or personal representative or executor, as it’s sometimes called) will also need to be formalized and estate administration taxes paid.

To Probate or Not to Probate

Good question. You may not have to probate an estate with a single beneficiary. For example, a childless couple may own their matrimonial home together, in a joint tenancy. The surviving spouse has the right of survivorship to inherit the home directly, without probating it. Joint bank accounts can also be released without being probated: if the amount is small (usually under $40,000), uncontested by the heirs and the financial institution agrees. It’s not necessary to go to probate court if that’s the case.

When to Probate

But probate is required if the deceased:

  • owned real estate on their own or shared it with others besides a legally married spouse with joint tenancy
  • had investments or publicly traded shares without named beneficiaries
  • had bank accounts of their own
  • was involved in an outstanding court action, such as a divorce, separation, bankruptcy or financial dispute
  • had minor children or dependents, such as adult children with developmental disabilities or a parent with dementia 
  • has heirs who intend to challenge the will or estate trustee’s appointment.

Having Second Thoughts

The court’s approved the final will. Next question: is administering the estate really for you? Now is your chance to step away if you think acting for the deceased, communicating with heirs and handling all of the many steps involved is more than you bargained for or you’re just too plain busy. No shame if you do. At this stage, it’s as easy renouncing your trusteeship. 

Withdrawing as Estate Trustee

Provided you’ve only made enquiries to test the waters and haven’t started administering the estate by dealing with the assets or liabilities, you can step away and the court will appoint another executor. No problem, you simply complete a form and it’s over. Backing out later rather than sooner requires you to resign and do the paperwork of “passing the accounts” or accounting for assets, income, fees incurred and any steps you have already taken. (Ask a lawyer for help if you are already involved with the estate administration.)

Getting Down to Estate Administration

That wasn’t too bad. The real work is about to begin. Administering an estate can take months or even years. Courts generally give an estate trustee what’s called an executor’s year or an initial year’s grace to:

  • review the will
  • hire advisors, like accountants and lawyers
  • collect and value assets
  • generate income by selling or disposing of assets
  • pay debts or liabilities from the estate proceeds
  • distribute property and possessions to heirs
  • ensure minors and other dependents are cared for
  • file and pay the final income taxes
  • pay estate, probate and professional fees
  • prepare a passing of accounts
  • and file court records.

Complex estates involving legal disputes with creditors or heirs can take more of your time. It could be years before the dust settles.

Get Advice on Probating an Ontario Estate

More questions? Axess Law’s Ontario probate lawyers help you get the court’s permission to administer an estate. Dial 1-877-522-9377 or in Greater Toronto 647-479-0118 or use our online booking form to make an appointment for a remote video call. We’re available 7 days a week, day or evening, at your convenience. In-person meetings can be arranged in Ottawa, Toronto, Scarborough, Vaughan, Etobicoke, Mississauga Winston Churchill or Mississauga Heartland.

Click here to learn more about Axess Law’s probate law services.

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