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What is probate? Why do I need it?

By: Richard Prouse

Probate means to prove or validate.  Although many people think of probate as a fee which is paid to the Court, it is actually the process our legal system uses to approve a person’s last will after his or her death.  This process also confirms the appointment of the person(s) named as executor(s) in the will.  The end result of this process is receiving a Certificate of Appointment of Estate Trustee (formerly Letters Probate) from the Court.

In Ontario, the Ontario Superior Court of Justice is responsible for this process.  The probate application is usually made in the region or county where the deceased person was living prior to his or her death or where he or she owned property.  There is a fee paid to the Court for this service.  These fees vary from province to province.

The fee is calculated based on the value of the estate.  The estate is made up of the deceased person’s property that he or she owned at the time of his or her death.  Some items are excluded from the Court fee calculation such as items that are owned jointly with another person and items that have a designated beneficiary.  Once the appropriate value of the estate has been calculated, the following fees apply in Ontario:

  • the fee for the first $50,000.00 of the estate value is $5.00 per $1,000.00 of value
  • the fee for any remaining amount is $15.00 for every $1,000.00 of value

The value of the estate is always rounded up to the nearest thousand.  For example, if the value of a person’s estate is $319,356.12, the value would be rounded to $320,000.00 and the Court fee would be calculated as follows:

Value of Estate Court Fees Court Fees Payable
$1,000.00 – 50,000.00 $5.00 fee per $1,000.00 $ 5.00 x 50 = $ 250.00
$51,000.00 and up $15.00 fee per $1,000.00 $15.00 x 270 = $4,050.00
Total Court fees payable: $   4,300.00

Do you have to get probate?

Whether probate is required depends on what kind of property the deceased person owned in his or her name alone at the time of his or her death.  In some cases, the last will is sufficient to administer the estate and probate is not required.  However, in order to deal with some property such as real estate, shares, and money in bank accounts most institutions normally require a Certificate of Appointment of Estate Trustee with a Will from the Court.  The Certificate of Appointment allows the institution holding the property to follow the Executor(s)’s instructions in transferring the property without fear of legal liability.

If a person dies without a will then he or she has died “intestate”.  Legal authority must be given to someone to administer the estate and distribute the deceased person’s property.  The application is almost identical to the probate process but the legal title at the end of the process is called a Certificate of Appointment of Estate Trustee without a Will.  All the same fees as required to be paid in the probate application must be paid before this appointment is finalized.  Conditions can also be imposed by the Court when granting the appointment, such as a financial accounting during the administration of the estate.

Administering an estate is not for the novice.  Assemble your team of financial advisors, legal professionals, and estate accountants.  It is often time consuming and costly but the right team can simplify the probate process.  Our lawyers are able to assist you in obtaining probate and administering an estate.  Contact a member of our Wills and Estates team to help guide you through this process.

Please note that any knowledge gained from information here cannot be used as legal advice unless under legal retainer from PDC. See our Terms of Service for more information