Welcome to the inaugural Casey & Moss Blog, where our team will be posting about estates, trusts, and capacity law issues every Friday.
The word “probate” is often heard in films and TV shows in the context of a deceased person and their estate… but what is probate, really? And who can apply for it?
Generally, in Ontario, probate is the court procedure to formally approve and recognize the Last Will and Testament as the valid Will of the deceased person, and/or to appoint an individual as the estate trustee (or “executor”) of a deceased’s person estate. The court issues a “Certificate of Appointment of Estate Trustee” to the estate trustee, which gives or confirms the estate trustee’s authority to act on behalf of the Estate.
The Certificate of Appointment of Estate Trustee can be obtained even if the deceased person did not have a Will. The application procedure is largely the same. However, there are differences in the applicant’s residency requirements and security or bond requirements, pursuant to the Estates Act.
In circumstances where the deceased person had a Will, the applicant would apply for a Certificate of Appointment of Estate Trustee With a Will, or “letters probate”. The legislation provides that probate shall not be granted to a non-resident of Ontario or non-resident of the Commonwealth unless the applicant posts security, or the court dispenses with security or reduces the amount of security.
Where the deceased person died without a Will, the applicant would apply for a Certificate of Appointment of Estate Trustee Without a Will, or “letters of administration”. Generally, the applicant must reside in Ontario and security must be posted. However, the court has the authority to put the residency requirement aside and appoint a non-resident of Ontario to administer the estate as it sees fit and on the appropriate terms, including terms about posting security.
What if the deceased person died with a Will but did not name an estate trustee, or the named estate trustee is unable or unwilling to act? The applicant would apply for “letters of administration with will annexed” as it’s called in the Estates Act. Similar to the requirements for a Certificate of Appointment of Estate Trustee Without a Will, the applicant must reside in Ontario, but the court has the residual authority to set aside the residency requirement.
There are other types of probate that can be obtained that this blog won’t touch on today, including “probate or letters ancillary” and “resealings” which have their own set of rules about residency and security. We will reserve these topics for a blog post for another day.
Thank you for reading our inaugural Casey & Moss blog post!