The Importance of an Estate Application
An estate application offers protection to the personal representative as well as third parties. However, it is not required in all instances. It depends on the type and nature of the estate assets being administered, including whether or not the deceased person had a Will. Please contact our office directly to determine whether an estate application is required in your case.
Estate applications are possible with a Will (known as certificate of appointment of estate trustee with a Will or formerly, as probate) or without a Will (known as certificate of appointment of estate trustee without a Will or formerly, as administration).
If a certificate of appointment of estate trustee is not obtained, it is likely that third parties (such as financial institutions) will refuse to transfer any of the deceased's property upon the personal representative's request. The reason being that they have no way of knowing what the true intention of the deceased person is, whether the Will is in fact the last Will of the deceased and whether the Will is in fact valid.
By obtaining a certificate of appointment of estate trustee, the third parties are assured that they are acting further to the interests of the deceased person.
Certificate of Appointment of estate trustee with or without a Will
In Ontario, an application for a certificate of appointment of an estate trustee with a Will (formerly known as probate) is the process in which the personal representative brings the last Will of the deceased to the Ontario Superior Court of Justice for approval. The court will then approve the Will and the personal representative (formerly known as the “executor”) and issue a certificate of appointment of estate trustee with a Will; this is of course, unless someone challenges the validity of the Will presented to the court.
An application for a certificate of appointment of estate trustee without a Will (formerly known as administration) is the process which the personal representative will follow when the deceased person did not have a valid Will. In the course of this process, the personal representative will file various documents (including affidavits) with the Ontario Superior Court of Justice in order to obtain a decision on the division of assets and payments of debts of the deceased.
Estate Administration Tax (formerly known as "Probate Fees")
Generally speaking the estate administration tax (formerly knonw as probate fees) is charged on the gross value of the deceased's estate as indicated in the "Value of Assets of Estates" provided by the personal representative to the court.The gross value is usually calculated by taking the fair market value of all the assets and substracting only liabilities secured against real property (such as a mortgage). This tax is payable when the personal representative files an application for a certificate of appointment of estate trustee with the court.
The formula for calculating the amount of tax is outlined in the Estate Administration Tax Act, 1998 (Ontario). It is 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.
Further to the above, if the value of the estate does not exceed $1,000, the estate is exempt from tax.
It is possible that in certain circumstances, the tax will be calculated on the estimated value of the estate. In such circumstances additional supporting documentation is required to be filed along with the application for a certificate of appointment of estate trustee.
Preparing the Estate Application
Our legal fees and disbursements for standard estates with w Will vary between $1,500 and $1,800 + HST. However, we ask that you contact us directly for a quote.
Our legal fees include:
- Reviewing the Will;
- Contacting the personal representative to obtain relevant and clarifying information;
- Explaining the estate administration process to you;
- Preparing the necessary documents required to complete the application;
- Calculating the estate Administration tax (formerly known as probate fees);
- Meeting with you to sign all relevant documentation; and
- Filing the necessary documents with the Estate Registrar of the Ontario Superior Court of Justice.
If you are interested in preparing an estate application or would like additional information, please contact Milva Caruso directly either by telephone at: (613) 837-8418 ext.223 or by email.