Disclaimer: The following information is intended as general information and not to be read as legal advice. Please seek legal advice from qualified legal professionals.
Going through the complicated intricacies of probate and estate administration during one of life’s toughest moments is daunting. Landmark Law understands the challenge and provides a simple step by step guide below to assist you throughout the process:
Step 1: Apply for Probate
Before we consider the steps involved, we first need to understand what probate is and the numerous confusing terminology of the various roles frequently engaged in the process.
What is Probate?
Probate is the process involved when seeking the Ontario court to grant authority to a person requesting to be appointed as an Estate Trustee or confirm the authority of the person named in the deceased’s Will as the Estate Trustee or validate the deceased’s Will. Depending on the situation, different court forms must be completed and filed.
Probate is evidence that the named executor of a Will has authority to act and serves as a third-party authenticator. Essentially, with probate, you are seeking the court to grant a:
i. Certificate of appointment of Estate Trustee with a Will; OR
ii. Certificate of appointment of Estate Trustee without a Will.
Executor is named in the Will and, if granted probate, is an Estate Trustee with a Will when the deceased died testate (with a Will).
Administrator is appointed by the court as an Estate Trustee without a Will when the deceased died intestate (without a Will).
Administrator with Will Annexed is appointed by the court as an Estate Trustee with a Will when the deceased died testate (with a Will) but did not appoint an executor, or the executor is predeceased, renounced, unable or unwilling to act.
Administrator de Bonis non Administratis is appointed by the court as a Succeeding Estate Trustee without a Will when the original administrator cannot continue and complete the Estate’s administration.
Administrator de Bonis non Administratis with Will Annexed is appointed by the court as a Succeeding Estate Trustee with a Will when the executor dies intestate, or the administrator with the Will annexed dies.
Administrator Appointed Pending an Action is appointed as an Estate Trustee During Litigation by the court when the validity of the Will or the authority to represent is pending a resolution by an action (a court proceeding that is not an application- which is a different type of court proceeding).
Personal Representative is defined in the Estate Administration Act, RSO 1990, c. E.22 as “…an executor, an administrator, or an administrator with the will annexed…”.
Estate Trustee is defined in the Rules of Civil Procedure, RRO 1990, Reg. 194 as “…an executor, administrator or administrator with the will annexed…”.
[Source: Albert Oosterhoff et al., Oosterhoff on Wills, 9th edition (Toronto: Thomson Reuters, 2021).]
Step 2: Fulfill your Duties and Obligations as an Estate Trustee
Now that we have a better idea of what probate is and information on some of the terminologies involved, let us now look at a checklist of some of the major actions you should take and be mindful of while carrying out your duties as an Estate Trustee.
Estate Administration Before Certificate of Appointment of Estate Trustee, whether “With” or “Without” a Will is Issued
After your loved one pass, it is important to gather all the important and essential information, if at all possible or to the best of your ability, to assist in facilitating a smooth probate and administration process. Some of these include:
1. Search for and obtain the last Will and Testament of the deceased.
2. Search for, gather and organize the details of all the assets (including business assets or corporate shares) and liabilities of the deceased. In particular, ensure that there are values or ability to derive the best estimates for all assets and liabilities of the deceased on the “as of death date”.
3. Secure all digital assets (accounts and devices): search for, gather and organize all the logins and passwords of the deceased for access to financial, institutional, social and essential web-based platforms. Similarly, secure all smart devices that may hold important information about the deceased.
Estate Administration After Certificate of Appointment of Estate Trustee, whether “With” or “Without” a Will is Issued
After you are appointed as the Estate Trustee by the court, the following are some of the major matters to attend to [Please note: remember to maintain good records and proofs of everything you do as an Estate Trustee]:
4. Funeral arrangements and obtaining copies of the death certificate [depending on the situation might need to be dealt with before certificate of appointment of Estate Trustee].
5. If there is a Will, make sure to review it thoroughly and carry out the wishes of the testator (the Will maker – the deceased).
6. Secure the real property of the Estate and ensure ongoing maintenance. If renting, notify the landlord and discuss the next steps.
7. Ensure home insurance is active, maintained and paid.
8. Ensure property taxes and utilities are paid.
9. Forward Mail of the deceased to you, the Estate Trustee.
10. If employed, notify employer, discuss next steps, and claim outstanding pay and benefits.
11. Inform all institutions (banks, government agencies, etc.), including insurers (real property, auto, mortgage, loans, life, critical illness, etc.), that you are appointed as the Estate Trustee and discuss the next steps.
12. Open an Estate bank account (the “Estate Account”) with the main financial institution of the deceased.
13. Close all bank or investment accounts of the deceased and transfer all residual funds to the Estate Account.
14. Transfer all essential preauthorized debit transactions (automatic withdrawal transactions) from those closed accounts to the Estate Account. These may include insurance payments for the real property and the vehicle, property taxes, utilities, etc.
15. If applicable, notify and cancel all subscriptions, memberships, the deceased’s driver’s license and health card, Canadian passport, immigration, Indigenous Service Canada, Canada Savings Bonds, Ontario Savings Bonds, armed forces and veteran affairs, Employment and Social Development Canada, Service Canada, Ministry of Children, Community and Social Services, Ministry of Children and Youth Services, etc.
16. Identify and reach out to the beneficiaries to commence communication and obtain required documentation.
17. Check and search for pets, other potential beneficiaries and creditors through the appropriate platforms.
18. Identify any support obligations or dependent relief claims. The deceased have support obligations to the child, ex-spouse or common-law partner.
19. Identify and resolve spousal obligations and whether the spouse will be electing to receive the residual of the Estate under the Family Law Act or the Will.
20. Collect benefits, compensations and claims of the deceased.
21. Inventory all of the deceased’s assets and liabilities. Once everything is accounted for accurately, file the Estate Information Return (the “EIR”) within 180 days after obtaining the Certificate of Appointment of the Estate Trustee.
22. Obtain all the necessary tax slips and file the deceased’s terminal return with a tax professional (they likely need the filed EIR as well). It is highly recommended to consult tax professionals on any other tax-related issues and requirements of the Estate, including child benefits and GST/HST credits. Make sure to obtain the tax clearance from the CRA before any residual asset distribution.
23. Pay off all liabilities of the deceased and settle all legitimate claims, including credit cards, personal loans, auto loans, line of credits, taxes, other creditors, etc. Mortgages likely require the real property to be sold.
24. If the real property needs to be sold to pay off the mortgage, ensure the real property is cleaned and listed promptly for sale and that the transmission application is registered with the appropriate Land Registry Office.
25. Be mindful of matrimonial matters such as the existence of a matrimonial home, divorce, settlements, ownership structure, and notifying the Family Responsibility Office if spousal or child support is involved, etc.
26. Sell, distribute or transfer any vehicle of the deceased by preparing a used vehicle information package, bill of sale, application for transfer, any other required certification and returning the license plate to Service Ontario.
27. Evaluate whether legal action is required on behalf of the Estate (collection of outstanding debt owed to the deceased, etc.). Similarly, defend the Estate in any legal action brought against the Estate.
28. Ensure compliance and administration of deceased’s assets not accounted for in the Ontario probate process that requires compliance with the probate process of other jurisdictions.
29. Once all debts, liabilities, obligations, taxes and claims have been fully settled and dealt with, make transfers with proper documentations of joint tenant properties to the listed survivor and transfers with proper documentations of properties designating beneficiaries to the designated beneficiary. For example, transfer assets held in joint tenancy or those that designate a beneficiary such as a TFSA, RRSP, RRIF, Insurance Policies (person or group), Pensions, foreign pensions, etc. to the respective survivor or beneficiary.
30. If trusts are stipulated in the Will, ensure to assist in perfecting the trust accordingly.
31. Distribute the residual of the Estate to the appropriate beneficiaries in accordance with the Will or to the appropriate heir-at-law in accordance with the Succession Law Reform Act, RSO 1990, c. S.26 if there is no Will.
32. Prepare and complete the passing of accounts which are a complete and accurate account of all the transactions that took place under the Estate Trustee’s administration. These include a statement of assets at the date of death, referencing entries, an account for all money received, disbursed, investments, liabilities, compensations, valuation methodology, capital and revenue reports, etc.
33. It is highly recommended that the beneficiaries approve a final accounting and sign a release that approves the Estate Trustee’s compensation, releasing the Estate Trustee of any claims and breaches.
34. Close the Estate Account after all residuals have been distributed accordingly, accounted for, and approved by the beneficiaries and the court.
35. To end your duties as Estate Trustee, ensure to organize and file all documentation of all your actions taken during your time as an Estate Trustee in a secured location in case of any future claims brought against you as an Estate Trustee.
There are various hiccups and complications throughout the estate process, which may seem demanding and complex. Nevertheless, with the assistance of Landmark Law, we will work with you and take you step-by-step through the probate and estate administration process. Be rest assured that a dedicated and caring team will be assisting and guiding you throughout one of life’s most challenging times.
Disclaimer: This article does not contain legal advice and only provides general information. It is not intended to replace advice from a qualified legal professional and should not be relied upon to make decisions. In all cases, contact your legal professional for advice on any matter referenced in this article before making decisions. The use of this article does not establish a lawyer-client relationship.