It is standard practice for parents to accumulate wealth for their children and grandchildren’s benefit post-death and to formalize the assets’ distribution in a Will. Wealth in the form of money, investments, real estate, art and other material items form part of a person’s estate. Depending on how assets are held, some of the estate’s assets may pass on to beneficiaries immediately after a property owner dies, however, other assets may be subject to Probate before they can be distributed. If you are unsure which assets are subject to probate, read on.

The Probate Process

Probate is the legal process that verifies a Will and confirms an executor – the person appointed to manage the distribution of a deceased’s estate. Probate can also designate an executor if an executor was not named in a Will or if the deceased died intestate (without leaving a will). The process involves, among other things, an executor making an application to the court for a Certificate of Appointment of Estate Trustee (also referred to as a Probate Certificate), submitting the original Will (if applicable), and paying any applicable Estate Administration Tax (also referred to as Probate tax).

Assets That Require Probate

Planning an estate with the help of an estate administration lawyer can help beneficiaries reduce their estate’s exposure to the Probate process. Assets that must be probated are:

1. Assets that are held solely in the deceased’s name,
2. Assets without named beneficiaries including assets that name a predeceased beneficiary,
3. Property which is held as a “Tenant-in-Common”

Tenants-In-Common Assets

In Ontario, there are multiple ways title of a property can be held. The two most common titles are “Joint Tenants” and “Tenants-in-Common”. If you own an asset as a Joint Tenant, the survivor(s) can make a survivorship application to have the property transferred into solely their name(s). When someone holds title as a “Tenant-in-Common”, the title ownership for each individual is considered to be separate and apart. Accordingly, a survivorship application is not available to individuals who hold property as Tenants-in-Common. 

Properties held as Tenants-in-Common are subject to probate and there is no right of survivorship. The deceased’s shares must be distributed according to the terms of a Will or intestacy rules.   

Help Navigating the Probate Process

Probating assets involves navigating the legal system, which can be daunting and confusing. If you need assistance with probating assets, contact us at GS Brar Law. Our experienced legal team can provide you with the guidance you need to create your estate plan, create your Will and Powers of Attorney, or probate an estate for a loved one.