What is a Probate Lawyer, and What Do They Do?

A probate lawyer in Ontario is a lawyer who helps executors handle the legal process of administering someone’s estate after they pass away. They are often hired to support in the process of acquiring a Certificate of Appointment of Estate Trustee (the probate application) when probate is required. This certificate essentially puts an estate trustee (or executor) in charge of the estate of a deceased person, or at least serves as evidence that one or more people are in charge of an estate.

To acquire probate, a probate lawyer collects information about the deceased, their Will if there is one, estate assets, estate liabilities, the proposed estate trustee, and the beneficiaries.  This information is inputted into the application form that is then sent to a courthouse for processing.  There are also several documents that must be sent with the form to make the application complete, which the probate lawyer will put together.

Is a Probate Lawyer in Ontario Required?

While a probate lawyer is not strictly required, it is unusual for someone to successfully receive probate without the assistance of a lawyer. 

An experienced probate lawyer will know:

• What assets to include and which to exclude
• The amount of tax to pay
• Who should be served with the application before it is submitted to a courthouse
• Who is qualified to be an estate trustee
• Whether an application in open court is required to appoint one trustee over the alternatives.
• Whether probate is worth obtaining to a potential estate trustee
• Whether probate can be avoided entirely
• Whether a bond is necessary
• Whether the consent of any party is required
• Whether the Public Guardian and Trustee or Office of the Children’s Lawyer must be served with the application

The probate form and any accompanying affidavit must be sworn by a commissioner of oaths. All lawyers are commissioners of oaths.

Ontario Guidelines for the Certificate of Appointment of Estate Trustee

Courts will reject applications that are imperfect in the eyes of the court staff member reading the probate application.  Given that it can take months for a probate application to be processed, it is much better to get it right the first time or at least require only minor changes. 

Once the Certificate of Appointment of Estate Trustee has been issued by the court, a probate lawyer can help a newly appointed trustee meet their obligations by publishing a notice to creditors of the deceased, filing Estate Information Returns within the 6 month deadline, and answering the estate trustee’s questions as they administer the estate.

What Else Can a Probate Lawyer Help With?

Next to dealing with the deceased’s remains, probate is often the first step in the estate administration process.  Once probate is granted, the estate trustee has many tasks, duties, and pitfalls to avoid. 

If the probate lawyer has the experience to do so, that same lawyer can assist the estate trustee with:

• administering the estate
• assisting with reports to beneficiaries
• paying down liabilities
• interpreting the Will if there is one
• advising as to how intestacy works in Ontario if there is no Will
• making sure that distributions are made only when it is safe to do so

Work with Experienced Probate Lawyers