In some cases, a personal representative, or executor, must probate the Will, which means to prove in court that the Will meets all the legal requirements. Under Ontario law, this process is now called Applying for a Certificate of Appointment of Estate Trustee with a Will. This document serves as proof of the executor’s authority to deal with the estate. Each province and territory has a similar probate process.
Ontario law requires that within 90 days of the Certificate of Appointment of Estate Trustee with a Will being issued, an Estate Information Return must be filed with the Ministry of Finance. This Information Return will include details about:
- the Certificate of Appointment of Estate Trustee
- the deceased person
- the estate representative
- assets of the estate
Does every Will have to be probated ?
No. Whether a Will needs to be taken to court and “probated” depends on the specific circumstances of each case. If the estate is small and not complicated, then a regular copy of the Will may be sufficient to wrap up the affairs of the person who died. If the estate is large and complicated, or if people are challenging the Will, then it will be necessary to probate the Will to prove it is valid and to establish the authority of the executor or personal representative. For example, if you have a large number of investments, the bank may want to see a probated copy of the Will so it knows that the executor or personal representative has the power to deal with your money.
In addition, whenever the estate includes real property that is in the deceased’s name only, or if is owned with someone else as tenants in common, the Will must be probated. Although less common, the executor may need to start or defend a lawsuit on behalf of the estate, or represent the estate in a lawsuit that was already underway when the person died. In such cases, it is necessary for the executor or representative to establish their right to act on behalf of the estate by having the Will probated.