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Do executors have to apply for probate?

On Behalf of | Aug 5, 2021 | Estate Administration

Most people want to ensure that everything is in place legally for their loved ones after they have passed away. That means ensuring all documents are included in an estate plan when it comes time to put that plan to use. However, even when an estate plan is solid and comprehensive, there may be questions an executor has about the process of estate administration. One of those could include probate, which many Ontario residents find very confusing. 

Does a will need to go through probate or not?

Firstly, probate makes sure the will as well as the appointment of the executor – the person who administers the will after the death of the testator – are valid. An executor secures the estate’s assets and determines if the estate should go through the probate process. An executor must apply to Ontario’s probate court for a will’s approval if: 

  • The testator died in debt.
  • The testator owned real property jointly not being passed to a spouse or common-law partner.
  • The testator had bank accounts, any registered investments or life insurance where a beneficiary hasn’t been named and if the financial institution won’t pay out funds without probate.  

Applying for probate

An executor should seek the counsel of an experienced estate planning lawyer to become clear on Ontario’s rules as they apply to probate. When an estate should go through the probate process and the executor fails to follow that procedure, he or she could face some problems. For example, if an executor asks an institution to hand over the money or to register a property title, those institutions will want proof that: 

  • The testator has died. 
  • The executor is the person named in the will. 
  • They won’t be sued if someone should contest the will. 

These institutions want to ensure they’re handing over assets to the right person. They want to be legally protected, and that is one of the positive aspects of probate. 

There are many other points to consider when it comes to estate administration. By talking to an Ontario lawyer, an executor may have a clearer understanding of the administration process. There are also many other issues that affect probate, and answers to questions can best be answered by someone who knows the estate laws of the province. 

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