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Jun

24

Probate a Will | Estate Administration Lawyer (Part 8): Dying with a Will

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.

This is the eight of a series of MANY blog posts about Estate Administration in Ontario. Be sure to check them all out! Here, I’ll continue my discussion of what documents you MAY need to file to probate a Will / receive a Certificate of Appointment of Estate Trustee with a Will.

What if the Will is in holographic form?
If the Will was handwritten and signed by the testator / testatrix, then an Affidavit Attesting to the Handwriting and Signature of a Holograph Will or Codicil is required. This is an affidavit by a person attesting to the handwriting and signature of the deceased person. The original Will must be marked as an exhibit to this affidavit (the commissioner for taking affidavits will stamp the back of the will). The person swearing or affirming the affidavit should preferably be from a person receiving NO disposition under the Will, who knew the testator / testatrix, and who had some specimen of their handwriting and signature someone on file. If the person giving the affidavit is a family member or beneficiary, the matter may be referred to a judge for a final determination as to whether the affidavit will suffice and, if not, what other proof should be filed.

Renunciation of Right to a Certificate of Appointment of Estate Trustee with a Will
This document must be signed by any estate trustee named in the Will and who is NOT making application or joining in the application. It basically says that the estate trustee renounces their right under the Will to be the estate trustee.

Consent to Applicant’s Appointment
If the applicant is NOT named in the Will as an estate trustee, then they must be a resident of Ontario. They must also obtain the consent from all the beneficiaries named in the Will in order to apply. That consent must be obtained from those beneficiaries who together have a majority share in the value of the estate’s assets.

Bond
I’ve previously blogged about the requirement for the applicant to post a bond. A bond, by two personal sureties, or one personal surety where the estate value is less than $100,000 or less or from an insurer licensed under the Insuarance Act to write surety and fidelity insurance is required if:

  • the applicant lives outside Canada or in a country that is not a member of the Commonwealth; or
  • the applicant is not named in the Will as an Estate Trustee.

Dispensing with a Bond
A judge may, in special circumstances, reduce or dispense with the amount of a bond. It is open to the estate trustee applying for appointment in any estate to request the reduction or waiver of the bond: section 37(2) of the Estates Act.

The applicant’s affidavit in support of the request for an order that the requirement to post a bond be dispensed with MUST include confirmation that: the debts of the estate have been paid, notification to creditors has been published, and that the consent of the beneficiaries has been filed. The applicant MUST also file a draft order dispensing with the bond. If granted by a judge, then the amount (in whole or in part) of the bond can be reduced or eliminated without any fee payable or motion required.

In the next blog, I’ll discuss the process which the registrar must follow in reviewing the documentation and other things (e.g. Estate Administration Tax) before issuing a Certificate of Appointment of Estate Trustee with a Will.

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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