Is Probate Necessary Before Property Can Be Transferred?

The old reference to “probate” in Ontario has been replaced with the Certificate of Appointment of an Estate Trustee. Probate referred to proving the Will in Court.

Naturally, the procedure is slightly different depending upon whether or not there is a Will.

The claims of the beneficiaries vest after three years. So, in that case, you may only need to register a copy of the Will. That is a much less expensive route than proving the Will. In other cases, a vesting Order can be sought, but that procedure is more expensive than simply making application for the Certificate.

While “probate” can be avoided, in most cases it is the “quick and dirty” way to resolve matters without problems. So, it is a fairly good solution.

It should also be noted that if property is held in joint tenancy either with a spouse or someone else, then it is only necessary to “register” a proof of death certificate. At one time, this was the death certificate produced by the Province under the Vital Statistics Act. Now, a Funeral Director certificate will do.

There is also an exemption for “first dealings” in the Land Titles system. It will not always apply, but it’s worth considering.

The matter is now dealt with under the Estate Administration Tax Act. Estates pay a tax of 1.5% of the estate’s assets. There is a slightly lower rate for the first $50,000 in assets. Previously, this was thought of “as a fee” as in the “probate fee”, however, then it would be the same for ALL estates, like $200.00 or a driver’s licence renewal fee of $90.00, no matter how much experience you had or how much driving you would do. So, it was switched over to a tax so as to avoid a potential Court challenge.

The tax on a house worth one million is just shy of $15,000.00, so if there is an opportunity to avoid this tax, it would be wise to do so.

Brian Madigan LL.B., Broker

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