Although I practiced law in the area of estate administration (the perpetuation of wealth from one generation to another), I am no longer competent to give legal advice because I am retired and do not pay Errors & Omissions Insurance to the Law Society of Upper Canada (as it was formerly known).
Created by an act of the Legislative Assembly in 1797, the Law Society of Ontario regulates Ontario’s lawyers and paralegals in the public interest by ensuring that the people of Ontario are served by lawyers and paralegals who meet high standards of learning, competence and professional conduct.
The Law Society of Ontario is governed by a board of directors, who are known as benchers. This board includes lawyers, paralegals and lay persons (non-lawyers and non-paralegals).
It might be of interest to you briefly to review matters relating to probate of a last will and testament. It is one of the central themes of estate administration. I shall not touch upon the situation where a person dies intestate – that is, without having made a last will and testament.
Pursuant to Sec. 92 of the Constitution of Canada, “property” is within the jurisdiction of the provincial government. Therefore, for people who own property (real property or personal property – or what is sometimes distinguished as moveable or immoveable property respectively) in the Province of Ontario, the governing law for the transfer of property ownership is the provincial law. There is no alternative or competing federal jurisdiction in this matter. Nor is there a superlative or extraordinary jurisdiction arising as a result of death; that is, the owner of property is the same on or before death (there is no distinction arising).
The Constitution Act, 1867 is the constitutional statute which established Canada. Originally named the British North America Act, 1867, the Act continues to be the foundational statute for the Constitution of Canada, although it has been amended many times since 1867. It is now recognized as part of the supreme law of Canada.
The Constitution Act, 1867 is part of the Constitution of Canada and thus part of the supreme law of Canada. It was the product of extensive negotiations by the governments of the British North American provinces in the 1860s. The Act sets out the constitutional framework of Canada, including the structure of the federal government and the powers of the federal government and the provinces. Originally enacted in 1867 by the British Parliament under the name the British North America Act, 1867, in 1982 the Act was brought under full Canadian control through the Patriation of the Constitution, and was re-named the Constitution Act, 1867. Since Patriation, the Act can only be amended in Canada, under the amending formula set out in the Constitution Act, 1982.
The Ontario Estates Act is a provincial law that governs the administration of estates and the distribution of assets after death. There is separate legislation called the Wills Act, Chap. 426, Revised Statutes of Ontario dealing with the creation of wills only (not probate of the will)..
Grant of probate
7 (1) An application for a grant of probate shall be made to the Superior Court of Justice and shall be filed in the office for the county or district in which the testator or intestate had at the time of death a fixed place of abode. R.S.O. 1990, c. E.21, s. 7 (1); 2006, c. 19, Sched. C, s. 1 (1).
Probate is “proof” of a will. Obviously what matters is production of the last will and testament of the deceased. There have been instances where the deceased moved from one town to another, then prepared a new will but did not destroy the prior will. It is for this reason that I recommend not giving a copy of a will to the intended executor or beneficiary, further since a disgruntled beneficiary may allege the incompetence of the testator for having changed his will. Whoever has in their possession what they believe to be the last will and testament of the deceased is the person entitled to apply for probate. There have naturally been instances of competing applications – but it is only the most recent will that prevails.
Evaluation
32 (1) The person applying for a grant of probate or administration shall before it is granted make or cause to be made and delivered to the registrar a true statement of the total value, verified by the oath or affirmation of the applicant, of all the property that belonged to the deceased at the time of his or her death. R.S.O. 1990, c. E.21, s. 32 (1).
The cost of probating a will, in addition to any pertinent lawyer charge for overseeing the matter, is a percentage of the evaluation of the estate (payable to the Province of Ontario). Keep in mind that the evaluation does not include any property (real or personal) which is owned Jointly (with Right-of-Survivorship) by the deceased with one or more others.
There is no probate fee for the first $50,000 of the estate assets. There is a $15 fee for every $1,000 of the total gross value of the estate above $50,000. This can also be worked out to 1.5% of the estate’s gross value over $50,000.
At first blush, it may seem that probate is unnecessary if all assets (property) of the deceased are owned Jointly (with Right-of-Survivorship). While it is true that the devolution of the Joint assets does not depend upon the will, there are nonetheless further advantages to probate. Probate not only proves the beneficiaries (of non-joint assets) but importantly proves the appointment of the executor who is to administer the affairs of the deceased. Both as an explicit and practical matter, having a probated will in hand is a decided advantage when dealing with Canada Revenue Agency, banks, insurance agents or any other party. I use that language of facility because the authority of the executor technically derives from the will, not the probate (or “proof”) of the will. By contrast, Ontario land registration law has now evolved to the point where, if real property is not jointly owned but rather is in the name of the deceased only, the Land Registrar will require probate of the will to determine the ultimate authority of the executor and the entitlement of the beneficiary (the exception is real estate within Ontario that was converted to Land Titles after purchase by the deceased owner and that has not had any “dealings” since).
In some instances I developed, in consultation with my clients, an Inter Vivos Trust Agreement. It was basically an agreement whereby the deceased transferred ownership of all assets to himself and others Jointly (with Right-of-Survivorship). On death, the others (as surviving joint owners) agreed to transfer ownership to the beneficiaries named in the last will and testament of the deceased (for which of course no probate was required). Prior to death of the testator, he remained the sole beneficial owner of the assets (of which the others were denominated mere trustees). It sounds complicated so it wasn’t for everyone. On balance, I found that having probate was in any event still an advantage because so many people with whom one dealt (say, for example, when transferring car ownership) instinctively felt obliged to ask for probate to prove the authority of the executor even though the will alone was sufficient proof for that purpose.
The length of time to process a probate application in the Court is normally no more than a month or frequently less.
However one proceeds to administer an estate it is a reminder that having a last will and testament is imperative. If you decide to prepare your own will, remember that the witnesses cannot be named beneficiaries. Once again I recommend having a lawyer prepare your will. I did not prepare my own will; my lawyer did.
During COVID-19, Ontario passed legislation that allowed wills to be witnessed virtually. With Bill 245, virtual witnessing is now a permanent alternative for Ontarians. The option of virtual witnessing makes it significantly easier to have your documents witnessed without needing to gather in person.