You Need a Probate Lawyer If…

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

Five times you need a probate lawyer in Ontario:

1. The deceased had a large, complex estate.

You took on being estate trustee to do the right thing, but you’re befuddled about where to even start. Your friend or family member was a real estate diva, with properties all over Ontario and other places too. What you thought was going to be simple matter of divvying up their worldly goods according to their will looks like it could get messy. 

If you agree to continue as estate trustee — you have the option of renouncing at this stage, with no particular consequences — you’d be well advised to start with a probate lawyer. They can prepare the application for a certificate of appointment of estate trustee with a will. And advise you on what documents are needed for your first court appearance.  

2. A family member is opposed to your appointment.

The funeral is barely over when the legal quarrel begins. You are having difficulty inventorying the deceased’s assets because the family is uncooperative. That will make it difficult for you to collect the information you need to get into probate court and have your appointment as estate trustee confirmed. In fact, the family plans to propose an alternate executor be appointed. You feel a moral obligation to the deceased to carry out the wishes in their will. A probate lawyer understands all the legal nuances and can explain your position to the judge.

3. The dearly departed’s heirs are challenging the will.

Just great. You’re the estate trustee, personal representative, executor or whatever the deceased called you in their will and the heirs have decided to challenge the will’s validity in court. You wouldn’t want to take that on by yourself or would you? The legal grounds for challenging an Ontario will are pretty technical:

  • The will wasn’t done correctly. 
  • The deceased wasn’t in their right mind when they left their fortune to Lassie, the border collie. 
  • They were coerced or unduly influenced by a sweet-talking Svengali.

Lacking a required signature, having the wrong or no witnesses, being a blend of handwritten and typed text, not the original or final will — let’s be honest, how would you know if the will was valid or not? 

Then there’s Lassie. Will makers (or testators, as they’re called) leave money to pets and their caregivers all the time. It doesn’t mean they lacked the mental capacity to make a will or understand the consequences of leaving out their next-of-kin. The instructions in the will seem clear. Lassie could be their BFF (best friend forever). Who are you to question their judgment?

As for Svengali, whether leaving their assets to him reflected their true wishes and intentions is best left to a skilled lawyer to argue on your behalf. 

When heirs file a notice of objection to a will, the estate trustee can be left in limbo. A certificate of appointment of estate trustee with a will requires approval by a probate court. Until the certificate is issued, an interim estate trustee during litigation (ETL) may be put in place by the court. The ETL will administer the estate while the court case is underway. While they can do some things, like pay bills that come due and sell assets, they cannot distribute the estate to the beneficiaries. You definitely need a probate lawyer.

4. Your uncle, brother, mother or spouse died unexpectedly, without a will.

You warned them to make a will. Human nature being what it is, they put it off until it was too late. You’re their closest next-of-kin and have a list of your family member’s assets. It’s not much, but you have some good ideas about how they might be distributed to family and friends. You talked to your relative’s bank manager, who won’t release their bank account or mutual funds without legal authority from a court. A probate lawyer can assist you to apply to Ontario probate court to be estate trustee. 

5. The deceased’s son has a debilitating addiction.

“Robbie’s” lucid when he’s not on crystal meth, but that’s not very often these days. He’s not up to instructing legal counsel or making informed decisions about an inheritance. You could get along without probating the will except for the fact that “Robbie” remains dependent on his family for financial support. Looks like you’ll need to probate after all. That will require the services of a probate lawyer to get yourself legally declared estate trustee.

Online Legal Advice by Video Call

Axess Law’s Ontario probate lawyers can give you legal advice about your estate trustee responsibilities. Licensed lawyers video conference online with you 7 days a week, day or evening, at times that suit your schedule. Call 1-877-522-9377 or in Greater Toronto 647-479-0118 or use our online booking form to make an appointment. Our lawyers can meet with you in person at our Ottawa, Toronto, Scarborough, Vaughan, Etobicoke, Mississauga Winston Churchill or Mississauga Heartland law offices.

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

Photo by Christo Anestev|Pixabay.