What is a will?
A person’s will is a written document that sets out the person’s wishes about how his or her estate should be taken care of and distributed after death. It takes effect when the person dies.
What is an estate?
An estate is the property that a person owns or has a legal interest in. The term is often used to describe the assets and liabilities left by a person after death.
What is a trust?
A trust is created to hold property or assets for the benefit of a particular person called the beneficiary. It is managed by a person called a trustee, who has an obligation to deal with the property for the beneficiary of the trust. There are many different kinds of trusts.
How do I get a copy of someone’s will after they die?
When an estate application with a will has been filed with the Superior Court of Justice, you can contact the court office and request a copy of the person’s will. You will have to pay a fee to the court for the copy.
How do I apply for death benefits?
There are benefits from the federal government, which may be available to a surviving spouse and dependent children of a deceased person and to the deceased person’s estate.
How do I find out about the status of my estate application?
Inquiries about the status of an estate application that has been filed with the Superior Court of Justice should be directed to the Superior Court of Justice location where the application was filed.
How do I calculate the amount of the estate administration tax?
The estate administration tax is calculated on the total value of the deceased’s estate. It is sworn/affirmed to on the application for a certificate of appointment of estate trustee under “Value of Assets of Estate”.
How do I prove I’m an heir (someone who inherits property) to an estate?
If someone dies without a will in Ontario and the Office of the Public Guardian and Trustee is appointed by the Court as the estate trustee, any person claiming a share of the estate will have to prove they are entitled to inherit.
How is an estate distributed?
When a person dies with a will, the estate is distributed according to the directions in the will.
When a person dies without a valid will (intestate), Ontario’s law on intestate succession requires a specific distribution of the estate.
How can I find out what happened to an estate of a family member?
You should first contact the Superior Court of Justice in the county where your relative lived at the time of his or her death, to see if someone was appointed estate trustee.
Why is the Office of the Children’s Lawyer involved in an estate or trust matter?
The Children’s Lawyer acts on behalf of persons under the age of 18 in various estates, trusts, guardianship and other matters.
Why is the Public Guardian and Trustee involved in an estate or trust matter?
The Public Guardian and Trustee plays a role in protecting mentally incapable people, protecting the public’s interest in charities, searching for heirs, investing perpetual care funds and dealing with dissolved corporations.
Where do I file an application for “letters probate” or “letters of administration”?
An application for “probate” (now called a certificate of appointment of estate trustee with a will) or “administration” (now called a certificate of appointment of estate trustee without a will) is filed at the Superior Court of Justice located in the county or district where the deceased had his or her permanent residence. If the deceased had no permanent residence in Ontario, the application is filed at the Superior Court of Justice in the county or district where the deceased’s property is located.
What is a certificate of appointment of estate trustee?
A certificate of appointment of estate trustee with a will is a document issued by the court that proves the authority of the estate trustee (formerly called an executor) to administer the provisions of the deceased’s will.
A certificate of appointment of estate trustee without a will is a document granted by the court that gives authority to the estate trustee (formerly called an administrator) to manage and distribute the estate of the deceased who died without having made a will.
What is the estate administration tax?
The estate administration tax has replaced probate fees since December 1998. The tax must be paid when the personal representative files an application for a certificate of appointment of estate trustee with the Superior Court of Justice. There are no other court fees payable for filing the application. Cheques for paying the estate administration tax are made payable to the Minister of Finance.
In certain circumstances, the estate administration tax paid may be calculated on an estimated value of the estate. In these circumstances, the personal representative must:
File an affidavit as to the estimated value of the estate;
Pay the estate administration tax on the estimated value; and
Provide an undertaking to file, within six months, a sworn/affirmed statement of the total value of the estate, and to pay the balance of any additional tax owing (if any).
On an order of a judge, in accordance with the criteria set out in the Estate Administration Tax Act, 1998 (including the posting of a bond), payment of the estate administration tax may be deferred to a specific date and the certificate of appointment of estate trustee may be issued.
How is the estate administration tax calculated?
The estate administration tax is calculated on the total value of the deceased’s estate wherever situated, that is sworn/affirmed to on the application for a certificate of appointment of estate trustee under “Value of Assets of Estate”. The formula for calculating the amount of the tax is set out in the Estate Administration Tax Act, 1998 as follows:
$5 for each $1,000, or part thereof, of the first $50,000 of the value of the estate, and
$15 for each $1,000, or part thereof, of the value of the estate exceeding $50,000.
What is a bond?
A bond protects the beneficiaries and creditors of the estate in the event of improper administration of the estate assets. It is posted with the court by the estate trustee as security for the collection, administration and accounting of the assets of the deceased’s estate. A bond is required under the Estates Act and the Rules of Civil Procedure in three situations (with certain limited exceptions):
1. Before an estate trustee obtains a certificate of appointment of estate trustee without a will;
2. Before an estate trustee obtains a certificate of appointment of estate trustee with a will where the estate trustee is not named in the will; and
3. Before an estate trustee obtains a certificate of appointment of estate trustee with a will where the estate trustee is named in the will but is not resident in Ontario, or in a province or territory of Canada, or in a Commonwealth country.
What is a surety?
There are two types of surety: (1) a personal surety who makes him or herself personally responsible for payment in the amount of the bond should the estate trustee fail to properly administer the assets of the estate; and (2) an insurer licensed in Ontario to write surety and fidelity insurance who acts as surety and who provides a bond for a fee.
A personal surety must be an Ontario resident and cannot be a minor or a solicitor. Two personal sureties are required where the value of the estate is more than $100,000. One personal surety is required where the value of the estate is $100,000 or less. The Estates Act provides that the amount of the bond shall be double the amount or value of the estate.
Where the surety is an insurer, the amount of the bond shall be equal to the amount or value of the estate.
Structure of a Will:
- Identify the person who is making the Will.
- Revoke any existing Wills.
- Appoint an Estate Trustee and a Substitute Estate Trustee (Someone who is legally competent and will administer your estate as per your wishes).
- List your wishes concerning your funeral, taxes, and personal effects.
- List and divide your personal and real property.
- Distribute the residue of your estate (These are your remaining assets after all liabilities have been paid and all other gifts distributed).
- Outline the powers and limits of your Estate Trustee (e.g. manage investments, sell assets, retain or dsipose assets, employ agents, deal with real property, make loans to beneficiaries, settle claims, make elections under the Income Tax Act, etc).
- Appoint a Custodian for your minor and disabled children and Guardian of their property.
- Include provisions for resoloving disputes.
- Execute (sign and date) the Will and have it witnessed by appropriate parties.