What is Probate?

As a executors (or estate trustees) begin working through the estate administration process, they may encounter roadblocks requiring them to obtain probate before moving forward. What does probate mean, and why is it so important?

Probate is the legal process of obtaining a court-issued document that confirms an executor’s authority to manage and distribute the estate. A bank may require an executor to obtain probate (or Certificate of Appointment of Estate Trustee) before recognizing their authority or releasing funds. In Ontario, executors often need to go through the probate process to access estate bank accounts or sell real estate property including a home. Probate may also be required in the event that the deceased does not have a Will, otherwise known as intestacy.

The Probate Process

Probate is the process of applying for a Certificate of Appointment of Estate Trustee from the Court, which:

• confirms the authority of an executor; and
• approves a deceased’s last valid Will, if it exists.

A probate application typically includes completing a form, attaching several necessary documents, and dealing with the Estate Administration Tax, which is $15 for every $1,000 of the value of the estate, though no tax is payable on the first $50,000 of an estate’s value.  The Ontario government website advises that: “Probate is time and labour intensive, and estates issues can be complicated so you may want to speak with a legal professional. You should contact a lawyer if you want them to apply for probate on your behalf or if you have questions…”  An executor’s reasonable legal fees are paid by the estate, including the cost of obtaining probate.

Acquiring Probate through a Lawyer

An executor is not required to use the lawyer who drafted or is in possession of a Will to apply for probate.  It is sometimes better to get a second set of eyes on the Will to spot potential problems or pitfalls, especially by a lawyer dedicated to probate and estates. 

An executor should never agree to pay a percentage of the value of the estate to a lawyer for legal fees.  The law that “permitted a solicitor to charge for legal services to an executor based on percentages of the value of the estate, was abolished” according to Ontario Court Decisions.  Estate litigation is on the rise.  While it is impossible to prevent all litigation, great advice and skilful estate administration is the best protection against litigation.

Probate Costs and Compensation

Executors usually receive compensation for their services, often determined by factors that include the success of the estate administration and the skill displayed by the executor.  The more smoothly the administration of an estate goes, the more an executor can generally charge. 

In order to obtain probate, Estate Administration Tax must first be paid to the Ontario government. It is based on the value of the Estate and must be paid at the time an application for probate is made.  A probate lawyer can apply to have the payment deferred until 6 months after probate is granted, thereby allowing the executor to use the estate’s funds to pay the Estate Administration Tax rather than using their personal resources

A bond (expensive insurance) may be required for a probate application, but a probate lawyer is often able to avoid the requirement for a bond.

Work with Katzman Estate Law for your Probate Application

At Katzman Estate Law: 

• We only practice estate law; we do not dabble.
• We charge a flat fee for most probate applications. 
• We may be able to help you avoid probate, while still accessing estate assets. 
• We normally file completed probate applications within a month of being retained. 
• We represent both individuals and trust companies. 
• We first try to get our fee paid directly from a deceased person’s bank account. 
• Simply applying for probate is not enough.  We also provide advice to avoid costly mistakes. 
• We have offices in Toronto, Windsor, Chatham, and Sarnia, though in-person meetings are typically unnecessary. 
• We are also estate litigators who regularly argue estate matters in the Ontario Superior Court of Justice.
• Our lawyers also act as professional executors and have specific insurance to do so. 

Katzman Estate Law lawyers have experience with:

• simple probate when someone dies with a valid Will;
• probate when someone dies without a Will (intestate);
• probate with the expectation of a dispute;
• probate when a deceased person made a Primary Will and a Secondary Will; and
• probate for succeeding executors, meaning the replacement of an executor who has died, retired, or been removed by the court.

The job of an executor and why they need a good probate lawyer:

• An executor is the person in charge of taking control of an estate and securing its assets. Executors also deal with estate debts and distribute estate assets. 
• Executors have great power and discretion, sometimes “absolute discretion”.  They also have personal liability for the decisions they make and must use their discretion in the best interests of estate beneficiaries. 
• Estate lawyers can help executors avoid costly mistakes. 
• Executors’ reasonable legal fees are paid directly by the estate. 

Why call Katzman Estate Law?

• We focus only on estate law and are capable of handling complicated estate administration and litigation matters.
• We know how to spot and avoid problems that would otherwise delay the administration of an estate or make executors vulnerable to a lawsuit.
• Ontario estate law has existed for over 100 years, but it does change every so often and new trends develop.  Katzman Estate Law stays on top of these changes and trends. 
• We do not charge for initial consultations and present a plan to you before you are asked for a retainer. 

On every file, Katzman Estate Law provides advice on: 

• interpreting Wills properly;
• avoiding trustee negligence claims and disputes with beneficiaries;
• moving matters forward quickly and correctly;
• dealing with difficult beneficiaries;
• securing an accountant to deal with taxes;
• determining when and how much an estate should distribute to its beneficiaries;
• planning how to approach estate debts; and
• keeping accounts in case they need to reviewed by the court. 

At Katzman Estate Law, we understand that our clients are busy people whose lives do not stop just because they act as executors. Our job is to protect our clients, to advise them appropriately, and to make their time as executors as pleasant as possible. 

Probate Timeline:

• After we are retained, it usually takes us a month or less to file the application for probate. 
• The slowest part of the process is the Court’s processing time, which can take months depending on the courthouse. 
• Where appropriate, an expedited application can save an estate thousands of dollars and months of delay. 

What is the first step for acquiring probate with Katzman Estate Law?

Call 416-616-4242 or 519-256-7130 for a conversation with a Katzman Estate Law lawyer.  We provide free phone consultations and can assist anyone with an Ontario probate matter.  We keep our clients informed with respect to where they are in the probate process, what the next step is, and what their obligations are.  Before committing to a retainer, we want potential clients to call, test our knowledge, and feel comfortable with us.  We want our clients to see firsthand what makes us different.