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Probating the Will

It is always hard to deal with the loss of a loved one, and even harder to have to figure out the next steps when your family member's Will names you as the estate trustee (executor) of their estate. Your first step to relieving this uncertainty is to contact an estate lawyer so they can help you with probating the Will.

It is imperative that the executor of Will ensures it is probated. This critical process is required for many reasons and has tax implications and may be potentially dangerous for financial institutions, especially where there are two potential trustees. Probating the Will and the subsequent issuance of a Certificate of Appointment will act as proof, certainty and protection to financial institutions such as banks.

In addition to this, a Will must be probated in order for the testator's real estate to be sold or transferred as they wish. The executor will have no access to the testator's personal property without proof from the court that they have been appointed as estate trustee.

Estate Administration Tax

The estate trustee is required to pay fees to the court in order to probate the Will. The applicable fees in Ontario are:

  • $0 per $1,000 for the first $50,000.00 of the estate; and

  • $15.00 per $1,000.00 for the remaining amount of the estate

For example, the estate administration tax for an estate valued at $800,000.00 would be $0 for the first $50,000 and $11,250 ($15 × 750) for the remaining $750,000, totalling $11,250.00.

This may be a daunting figure for executors who may not have access to other funds in the interim. However, what you need to know as the estate trustee is that if the Will is not probated, financial institutions will require a notarized copy of the Will, a copy of a Death Certificate in addition to an Indemnity Agreement that will serve to protect them should a more recent Will be presented to them in the future.

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