Can You Empty an Estate House Before Probate?
Published on 29 August 2022, 07:22:56 AM
The celebration of life is over, and all that remains is to empty an estate house your beloved family member left behind. Or so you think.
Tidying up a loved one’s personal and business affairs can be simple or complex. It can take months, or literally years.
Before you let yourself in the front door:
- check whether Ontario estate law allows you to empty an estate house before probate is concluded
- and, confirm who owns the home.
You may be surprised to know what you can and can’t do under provincial regulations.
Spousal consent in real estate — Ontario law.
How Ontario Law Affects Your Efforts to Empty an Estate House
Say you own the home. It’s a matrimonial residence, or you shared joint tenancy with your partner. Now can you empty an estate house yourself?
Not yet. Your loved one’s estate trustee or executor needs legal authority from an Ontario probate court to disburse any part of their estate. That means the estate trustee or executor must go before the court to prove:
- your loved one’s Will is their last and most current one
- who the Will has designated to distribute the estate
- and, what’s included in the estate and its value.
They may even have to pay an administration bond. Until that happens, even an executor or estate trustee can’t empty an estate house, let alone family members.
What Happens to Your Personal Possessions
Many Ontarians put off making a Will, or neglect to update theirs regularly. Spouses, partners, or even adopted or newborn children may be left out altogether. Who owns what could be completely up in the air.
Questions to ask a probate lawyer.
Even if a recent Will was made, removing household possessions could bypass your loved one’s estate plans. You could be forced to return treasures your spouse bequeathed to someone else, or taken to court by the estate trustee to surrender personal possessions that form part of a parent’s Will.
Even sentimental mementoes you cherished as a child, spouse, or partner could be assets their estate trustee is responsible for collecting, valuing, and declaring on a probate application. Remember, some beneficiaries may not be pleased with your loved one’s last Will and testament. Going to court to contest a Will can seem to take forever.
Can You Avoid Probate?
Wait a minute, you just read something about how to avoid probate in Ontario. Is it true? Sort of. You can organize your estate to leave assets like life insurance, pensions, or investments like stocks, bonds, RRSPs, and RRIFs to named beneficiaries.
Strategies like giving inter vivos gifts (during life), creating family trusts, and separating personal from business Wills can reduce the need to probate assets (and pay estate administration taxes).
How to avoid probate in Ontario.
But probate may still be required for specific assets, like:
- real property, such as homes or land in Ontario
- Canadian or foreign bank accounts
- property held in someone else’s name
- undesignated insurance or investments left to your estate
- intellectual property like copyrights, patents, or trademarks
- business interests or shares
- vehicles or vessels
- and more.
Are Debts Probated?
Fortunately not. Unsecured debts like credit lines, credit cards, or consumer loans are exempt from probate. The estate trustee pays debts from all the assets, before distributing the residue (what’s left over) according to the Will.
Who Owns the Estate House Anyway?
Who owns homes, vacation condos, RVs, travel trailers, or boats can depend on who is on the title or lease, or their marital status.
Any “home” a legally married couple shared, even if it was just a cottage they stayed at a few weeks every year, can be matrimonial property. And yes, that can include a sailboat, or any other vessel the Ontario Family Law Act deems was normally “lived in”, however briefly.
Who gets the matrimonial home when your spouse dies.
Whether or not they are on title to a property or rental lease, separated or together, legally married spouses may have automatic matrimonial rights to all shared homes. This may mean unless they were divorced and property division decided in a settlement agreement on the day your loved one died, a spouse can go on living in estate houses.
Since spousal consent is needed to sell, you could be facing an uphill battle to empty an estate house before the Will is probated.
Your First Probate Consultation is Free!
Axess Law has affordable virtual Wills and probate lawyers throughout Ontario. Your first probate consultation is free, and our all-inclusive legal services have no hidden fees or surprises.
Find probate lawyers near me.
Your virtual probate lawyer assists with applications for certificates of appointment of estate trustee with a Will or without. We can inform you about collecting and estimating the estate’s value, and how to pay estate administration taxes. Axess Law can answer your questions about what is probate and how long does probate take in Ontario in 2021.
If you don’t have a Will or your current one is seriously out of date, our Wills and estates lawyers draft a new one for you.
Using a lawyer to make a Will.
Virtual Probate Legal Services in Ontario
Axess Law’s virtual lawyers for Wills or probate services are available when you are. You can access lawyers through our remote video conferencing software anywhere in Ontario. Our virtual Wills or probate lawyers can courier documents to you, you can e-sign or drop into any Axess Law office near you to finalize legal documents.
E-sign legal documents with virtual probate lawyers.
Make individual Wills, or multiple business and personal Wills, with Axess Law. Our Wills and estates lawyers charge low flat fees for only the legal services you need. You pay just $199.99 and up plus HST for individual Wills, or $149.99 and up each plus HST if you and your spouse make your Wills at the same time.
Get basic Wills for less, or ask Axess law to make multiple Wills.
Find Probate Lawyers Near Me
Make flexible appointments using Axess Law’s easy online booking form. Dial 1-647-479-0118 lawyer line or toll free to 1-877-402-4207 to connect with our Greater Toronto Area or Ottawa law offices in person. We have locations convenient to you, with onsite parking and easy transit access.
