Probating an Estate
The term “probate” has historically referred to the process of proving in court that a Will is valid and that it is the “Last Will” written by a person who is now deceased. In Ontario, this process is now referred to as the making of an “Application for a Certificate of Appointment of Estate Trustee with a Will”. Through this process the court certifies that the Will was duly proved and registered in the court and that the administration of the property of the deceased was duly committed by the court to the executor, who is now known in Ontario as the “Estate Trustee”.
Although Estate Trustees derive their authority from their appointment under the Will, in practice, they may not be able to effectively administer the assets of the Estate without the Certificate of Appointment of Estate Trustee with a Will; i.e. probate. For example, banks and other financial institutions may require a court’s confirmation that the Will is believed to be the legitimate “Last Will” of the deceased person and that they are protected in relying on that confirmation and releasing assets to the estate trustee.
In Ontario, the charge levied by the court for the probate process used to be referred to as “probate fees”. These charges are now called “Estate Administration Taxes”. These taxes amount to $5 for each $1,000 of the value of the assets of the Estate, or part thereof, up to $50,000 in assets and $15 for each $1,000 of the value of the assets, or part thereof, over $50,000. This Tax must be paid at the time the application for the certificate is filed with the Court. Consequently, one of an Estate Trustee’s first responsibilities is to prepare an inventory of the estate assets and ascertain their value.
As a result of changes in 2011 to the Ontario law regulating probate taxes, the Minister of Revenue is able to assess or reassess probate taxes for a period of four years after the day the tax is payable, which is the date the application to the court (for probate) is made (or forever, if there is failure to comply, misrepresentation, or fraud). Although draft regulations have not yet been issued, it has been indicated that it will be an offence to fail to comply or to misrepresent information, punishable by fines and/or imprisonment.
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(Important note: These comments and all comments on this website are provided for general information purposes only and should not be construed as legal advice. The reader should seek and specifically retain an estates lawyer before acting on this information.)
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