Probate a Will | Estate Administration Lawyer (Part 7): Dying with a Will

Probate a Will | Estate Administration Lawyer

Please note that the information provided herein is not legal advice and is provided for informational and educational purposes only. It may not be up to date. Laws change often and without notice. If you need legal advice with respect to Wills and Estates matters, you should seek professional assistance (e.g. make a post on Dynamic Legal Forms). We have Toronto, Ottawa, Hamilton, Brampton, Mississauga and other Ontario lawyers registered to help you. You can also contact me directly for estate administration matters.

So this is the seventh of a series of blogs I’m writing about probate or estate administration in Ontario. I’ve previously and quite extensively written about estate administration (including for those who die without a Will), which you can find here:

In this next series of blogs, I’ll be talking about what happens if you die WITH a Will. We begin with the idea that is common to many but not fairly understood: probate. Probate is process of having a court certify the validity of a Will and the person appointed thereunder to be the estate trustee.

Note: you’ve likely heard of the term “administrator“, “executor“, “trustee“, “estate trustee“, “liquidator“, “personal representative” etc. Do they all mean the same thing? Basically, yes. The confusion comes from the different legislation that govern estates. For example, the Succession Law Reform Act talks about personal representatives, administrators, executors and trustees. Same goes for the Estates Administration Act. The Estates Act talks about executors, administrators, and trustees. Finally, the Rules of Civil Procedure talk about an Estate Trustee. The main difference, as I see it, is whether the person administering the estate was appointed under a Will or received a Certificate of Appointment of Estate Trustee where there was no Will. They will be called different things depending on which legislation applies to their particular actions.

Now, in order to have the Will probated, there is a process to follow. That process involves submitting documents to the right court estate administration office, paying certain estate administration taxes (if applicable), and then receiving a Certification of Appointment of Estate Trustee With a Will. So lets get into these details, shall we?

Filing Documents
In every case, a few documents must be filed. In certain cases, some documents need not be filed. The following are the mandatory documents that must be filed in every case by a person seeking a Certificate of Appointment of Estate Trustee With a Will:

Application for Certificate of Appointment of Estate Trustee With a Will:
This used to be called an Application for Letters Probate. The Application provides detailed information about the deceased person (e.g. names, address of fixed place of abode, last occupation, date of death, marital status, value of assets of estate, etc.)

Affidavit in Support of the Application
The applicant who wishes to be the Estate Trustee and receive a certificate as such must be over 18 years old and swear an affidavit in support of the application. In that affidavit, the applicant will swear or affirm to faithfully administer the deceased person’s property and render a complete and true account of the administration.

The Original Will marked as an exhibit to affidavit
The original Will must be marked as an exhibit to the applicant’s affidavit. The exhibit stamp must appear on teh back of the signing page.

A Clean Photocopy of the Will
A clean photocopy of the Will should also be submitted.

Affidavit of Service of Notice of Application
Notice of the above Application for Certificate of Appointment of Estate Trustee with a Will MUST be sent to all persons entitled to share in teh distribution of the estate under the Will. This can be sent by regular letter mail to their last known address unless:

  • the beneficiary is a minor, in which case, the notice must be mailed to the minor’s parent or guardian and to the Children’s Lawyer;
  • the beneficiary is unborn or unascertained, then notice must be sent to the Children’s Lawyer;
  • the beneficiary is mentally incapable, then that notice must be sent to an attorney under a continuing power of attorney or a legally authorized guardian or if non appointed, the Public Guardian and Trustee.

If a beneficiary who is entitled to receive notice of the Application has NOT been served with notice, then the affidavit of service must give the name and reasons why.

Notice of Application
Attached to the Affidavit of Service of Notice is the actually Notice of Application of an Application for a Certificate of Appointment of Estate Trustee with a Will. Wow! That’s a mouthful! Basically, think of it like this: the Affidavit of Service says that you served the Notice. The Notice is the document which you served saying that you are applying for a Certificate of Appointment of Estate Trustee. So you need to attach the Notice to the Affidavit and mark it as an exhibit. Phew!

Affidavit of Execution of Will or Codicil

This is a sworn or affirmed statement by both people who witnessed the testator / testatrix (i.e. the person who made the Will) sign it. Recall that under Ontario law (assuming the Will was not hand-written by the testator / testatrix), to be valid, a Will must be signed in the presence of two witnesses. For the purposes of estate administration, it makes everyone’s life easier to have the witnesses swear affidavits at the time of witnessing the signature. This way, you don’t have to go looking for them when the testator / testatrix dies! They may not be available or be competent enough to swear or affirm an affidavit. In any event, the Will should be marked as an exhibit (on the back of the signature page) to these Affidavits.

Question: what if the witnesses have died or can’t be found?
If one or both of the witnesses have died or cannot be found, then an affidavit stating the reasons why no affidavit of execution has been filed should be provided. Where the witnesses cannot be found, the efforts made to locate the witnesses should be included. Moreover, an affidavit attesting to the signature of the testator / testatrix must be filed and should be preferably from a person receiving no disposition under the Will. This person should be acquainted with the signature (e.g. employee, bank, etc.) and who has a specimen on file of the testator / testatrix’s signature. If the affidavit is from a family member or beneficiary, then a judge will ultimately review it to determine if it’s acceptable or not and, if not, what other proof is required.

Certificate of Appointment of Estate Trustee With a Will
You need to include draft copies of the actual Certificate (for the court to ultimately endorse), with a backsheet.

PHEW! That’s a lot of documentation. A lot of stuff needs to be filled in properly, mailed, documents, affidavits sworn, etc. If even one of these things isn’t done properly, you’ll waste time and money trying to get that Certificate of Appointment of Estate Trustee with a Will. To make matters even more administratively complicated, you’ll need to SUBMIT MORE DOCUMENTS in certain circumstances, which I’ll get into in the next blog…

By the way, if you need a Will and want to leave everything to your surviving spouse, you’ve come to the right place:

Last Will and Testament (Ontario): Outright Distribution to Spouse

This legal form can be used by a Testator or Testatrix (i.e. a person who is making a Will) to appoint an Estate Trustee to manage their final wishes, transfer the residue of their estate (i.e. their leftover assets after debts have been paid off) to their surviving spouse, and appoint a guardian / custodian for their minor children. This Last Will and Testament also comes with affidavits for witnesses to swear / affirm (great for probate!). Best of all, this Last Will and Testament comes with a FREE VIDEO GUIDE (watch a useful example of how this legal form can be customized), a FREE DL GUIDE (read helpful information about this legal form), and another FREE DL GUIDE that offers valuable insight into how contracts can be challenged) What are you waiting for? Go to Dynamic Legal Forms. And if you DO need a lawyer and need some legal advice, simply make a post and get FREE quotes from Ontario lawyers focusing on the area of law you require!

This information and this sample video guide is NOT legal advice and is provided for informational purposes only. If you need an Ontario lawyer, go to Dynamic Legal Forms and make a post.

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