Does Every Will Need to be Probated?

Generally, a personal representative, or executor, must probate the Will of the deceased. This means it is the executor’s responsibility to prove in court that the Will meets all the legal requirements. Under Ontario law, this process is called Applying for a Certificate of Appointment of Estate Trustee with a Will. This document serves as evidence of the executor’s authority to handle matters relating to the estate.

Whether a Will requires to be probated largely depends on two factors:

  1. The nature of the assets of the estate; and/ or
  2. Whether the choice of executor, or actions of the executor, may be contested by one or more beneficiaries or others

If the estate is small and there are no complex issues, a regular copy of the Will may be sufficient to wrap up the affairs of the deceased without having to go to court to obtain a Certificate of Appointment of Estate Trustee.

If the estate is large and has complex issues such as multiple accounts and investments, or disputing beneficiaries, probate, or a Certificate of Appointment of Estate Trustee, will be required by the financial institutions or courts to confirm that the estate trustee is authorized to act on behalf of the estate.

Probating a Will can be expensive for medium to large estates. An estate administration tax, also known as probate fees, must be paid. This tax is progressive and is based on the total value of the deceased estate. Many families choose to minimize the amount of estate administration tax they pay by taking advantage of various estate planning mechanisms.

A common estate planning mechanism is when spouses hold real property together as joint tenants. Property held in this way does not need to be probated as it carries with it, a right of survivorship. This means that if one spouse dies, title to the property automatically transfers to the surviving spouse, avoiding probate.

Assets such as RRSPs, RRIFs, life insurance policies, and pensions that have beneficiary designations, among others, are not required to be probated. These types of assets can be transferred fairly easily, by showing the bank or institution a copy of the deceased’s death certificate and identification verifying that they are dealing with the named beneficiary.