An Executor/Estate Trustee is responsible for the administration of the estate including conducting the funeral, proving the Will (if necessary), satisfying any debts of the deceased from the estate, and distributing the residue of the estate to the beneficiaries. An Executor must read the Will and follow its instructions, wind up the affairs of the deceased, and administer the estate according to the law. An Estate Trustee should obtain legal and tax advice before commencing their duties. An Executor must be at least 18 years of age and it is advised that the Executor be a resident of Ontario.
In the event you become divorced, it is advisable to revisit your estate plan and remake your Will with new
instructions. Except where you have specifically intended otherwise in the Will, if you terminate your marriage by
divorce or nullity, your spouse no longer has a beneficial interest in your property, is not eligible to be your executor/trustee, cannot act as your general or special Power of Attorney, and your former spouse will be treated as if they had predeceased you for the purposes of disposing of your estate. Essentially, only the provisions in your Will referring to your spouse will be revoked and all other provisions can continue in its absence. For example, if your Will allows for your spouse to inherit your full estate but in the event they pass your estate would pass to your children, then in that case the provision referring to your spouse will no longer be effective and the inheritance will be directly passed to your children unless you have made an intention otherwise.
A Will can be voided at any time during the Testator’s (person making the Will) lifetime. To cancel a Will the
Testator must still have testamentary capacity (ability to give instructions), the wishes cannot be due to undue influence or duress, the Testator must understand the affect of revoking their Will, and the revocation must be
done in writing. The Will should also be completely destroyed upon the creation of a new one to ensure only one valid Will is in the Testator’s possession at the time of passing.
Probate is a court procedure to confirm the authority of an Estate Trustee named in a Will. If a Will was not prepared, then probate gives a person authority to act as the Estate Trustee. A Probate Certificate can also be used to confirm that the deceased’s Will is in fact their last valid Will.
Probate can only take place once someone has passed away. To apply for a Probate Certificate, you will require:
- An original death certificate,
- Names and contact information of all beneficiaries,
- Completed Court forms,
- If applicable, the original Will of the deceased, and
- If applicable, a bond.
The time it takes for a Probate Certificate to be issued depends on the complexity of the estate and the workload
of any given Court. Once we have met with you and gathered the information about the estate, our firm will file your application within a few days. Most Probate Certificates are issued within 4-6 weeks of the application being submitted.
An estate is a combination of all the assets of an individual including real estate property, personal property, cash, vehicles they may own, and all other assets the individual owns or has an interest in.
Probate may be required when a deceased person dies without a Will or when the deceased person’s Will does
not name an Estate Trustee. Even if an Estate Trustee is named in a Will, probate may be required if the deceased
person owned real estate that does not pass to another person by right of survivorship, a financial institution requires probate, there is a dispute regarding the Estate Trustee or the validity of the Will, or if beneficiaries
named in the Will are not able to provide legal consent.