So, you’re named the Estate Trustee in your widowed mother’s Will. What do you do?
First of all, be aware, you will hear the word “probate” over and over. It drives me crazy when lawyers, bankers and realtors, say, accusingly, “haven’t you probated the Will yet?” They should know better: it’s been almost 20 years since we changed from “probate” to “Certificate of Appointment of Estate Trustee” in Ontario.
Nevertheless, your Google search for “probate in Ontario” will be just as effective, if not more so, as searching “administering an estate in Ontario”.
Is a Certificate of Appointment of Estate Trustee necessary?
If there is real estate or significant monies in investments you will most likely be obliged to obtain a Certificate of Appointment of Estate Trustee, aka “probate”, before you will be able to deal with these assets of the estate. The Certificate of Appointment of Estate Trustee (probate) is a document issued by the Ontario Court in the district where the deceased resided. It certifies the death of the person and confirms the appointment of the estate trustee named in the last Will.
How do I apply for the Certificate of Appointment of Estate Trustee?
The Application comprises a number of Court forms. The forms are readily available online. At a minimum you will have to file the following:
1. Affidavit of Service of Notice of An Application For A Certificate Of Appointment Of Estate Trustee With A Will
A form document entitled Notice of An Application For A Certificate Of Appointment Of Estate Trustee With A Will is sent, by mail, to every beneficiary in the Will with a copy of the Will attached. Once the Notice has been mailed to each beneficiary, the Affidavit of Service can be executed. A copy of the Notice, as mailed is attached as an Exhibit. Someone authorized to take oaths must notarize both the Affidavit and the Exhibit.
2. Application for Certificate of Appointment of Estate Trustee with a Will
This document sets out the details of the deceased, the Estate Trustee and the estate. It must be notarized. Ideally, a reasonably accurate monetary valuation of the estate is required as Court fees (probate tax) are paid when the application is filed based on the value of the estate as set out in the Application. It is a bit of a catch 22 because without the Certificate of Appointment some assets cannot be sold and so their value can only be estimated. Note, payment of the fees can be postponed if further documents are filed.
3. Certificate of Appointment of Estate Trustee with a Will
This document is a draft of the Order that the Court will issue appointing the Estate Trustee.
4. Original of the Will and a copy
5. Original Affidavit of Execution of the Will
Some Final Caveats
The forms should be filed in exactly as presented. The clerks at the Court are not equipped to determine the validity of forms that differ from the norm and routinely reject them. It may seem like a simple thing, but obtaining the Certificate is a daunting task; heavy on procedure and finicky paperwork. You would be wise to employ a lawyer to advise and assist you with the application.