Oct 3, 2025
As the first point of contact for our firm, I receive numerous calls from potential clients seeking legal advice and assistance with respect to estates and wills.
The following are three commonly asked questions and answers to these questions:
1. Probate
Q: I am named as the executor and estate trustee in a Will. I am at a loss. Where do I start?
A: Reaching out for legal advice is the first step, which you have taken.
As an executor and estate trustee, you may have to probate the Will and obtain a Certificate of Appointment of Estate Trustee (CAET).
In a case where the deceased died intestate (without a Will), before you start an application for probate it is recommended that you check whether anyone else has already started a court application or has been issued a certificate. This can avoid an objection to your application.
It is also important to know the value of the estate and what makes up the estate, for example, real estate and personal assets.
You can apply for a Small Estate Certificate if the estate is valued at up to $150,000. If the estate is valued at more than $150,000, generally, you should apply for a Certificate of Appointment of Estate Trustee.
When applying for the CAET, you will need to supply the court with the following original documents:
- Probate Application for a Certificate
- Request to File an Application for a Certificate
- Draft Certificate
- Last Will and Testament of the deceased (if available) and Affidavit of Execution
- Original or notarized copy of the Proof of Death Certificate for the deceased
- Cheque for estate administration tax (also known as probate tax)
Within 180 calendar days of receiving the CAET, you must file an Estate Information Return (EIR), which lists the value of the deceased’s assets at the time of death with the Ministry of Finance.
(For further information on how to obtain assets from financial institutions, please see our blog of July 18, 2025 by Olesya Johnson).
2. Joint Accounts
Q: I held joint accounts with the deceased and the bank is asking for a probate certificate before they can release the money. Why?
A: Some joint accounts may or may not fall within the value of the estate.
A joint account with right of survivorship is an account held by two or more people where the surviving account holder(s) receive the funds upon the deceased’s death and generally does not need to go through probate.
In the case of joint spousal accounts, they typically fall outside the estate by right of survivorship.
However, in the case of joint accounts between parent and child, it could fall within the estate under the presumption of resulting trust. In this case, the bank may require the estate trustee to obtain a probate certificate before releasing the funds.
The testator’s intention as to whether the joint account is to be shared with other beneficiaries of the estate or simply pass directly to the survivor should be considered.
(For further information on joint accounts and the presumption of resulting trust, please see our blog of May 15, 2025 by Cara Zacks).
3. Delayed Distribution and Accounting of Estate Assets by Estate Trustee
Q: It is almost two years since the estate trustee obtained probate. The estate trustee has not made final distributions and is not providing any accounting information on the estate. What can I do?
A: An estate trustee can generally distribute the estate assets within a year. However, based on the complexities of the estate, it could take longer.
Once the estate has been administered, the estate trustee should pass their accounts to show that the estate assets are properly managed. This is called a “passing of accounts”. If the estate trustee fails to do so or refuses to provide information on the estate, any of the beneficiaries in the estate can retain a lawyer to make an application to the court to compel the estate trustee to pass accounts or have the estate trustee removed.
Roslyn Blackette
Nothing contained in this post constitutes legal advice or establishes a solicitor-client relationship. If you have any questions regarding your legal rights or legal obligations, you should consult a lawyer.
Jul 18, 2025
After months of waiting, you’ve finally received your Certificate of Appointment from the Court, and you can now manage the estate, pay debts, bring in the assets, file taxes, and distribute funds.
But what do you do if you don’t know the full value of the estate and the Estate Information Return (EIR) deadline is 180 days away and fast approaching?
As an estate trustee, you have the responsibility to determine the assets of the estate and confirm the values as of the Date of Death, and it can often be a long and difficult process to obtain the information you need from a financial institution.
If you are not aware of the assets, you can consider using a service like Estatesearch or hire a lawyer to do a deep dive and uncover any accounts.
Here are a few tips and steps you should take to obtain the information you need:
1. Hire a Lawyer: In many ways it is valuable to have a lawyer assisting and advising you on the estate administration process and to reach out to the different financial institutions on your behalf. There is a cost associated with this work, so take this into consideration.
2. Prepare notarized copies of the following documents (notaries, lawyers, and paralegals can provide this service):
- Will (if obtaining prior to issuance of your Certificate of Appointment)
- Death Certificate
- Issued Certificate of Appointment
3. Provide a copy of a valid government-issued photo ID to the bank.
4. Walk into the bank branch and provide them with the notarized documents and inquire about how you can obtain statements showing balances as of the date of death. Some estate departments of banks require the branch staff to verify the physical copies of the documents and your ID in person before speaking to the Estate Trustee on the phone or via email.
5. If applicable: Call the bank and inquire about how to submit the documents needed to gain access to the statements. Some will accept clear, scanned emailed, mailed or faxed-in copies and others require you to attend in person.
6. If applicable: Mail or fax the above documents to the relevant estate department along with your request for the balance of the account and statements as of the date of death.
7. Follow-up and keep good records. On that first conversation with the bank, ask for a reference number, and phone number or email address so that you can follow up on the status of your request. Once you receive the requested information, save it and make note of the documents and values received for when you need to report to the court and on your Estate Information Return.
Olesya Johnson
Nothing contained in this post constitutes legal advice or establishes a solicitor-client relationship. If you have any questions regarding your legal rights or legal obligations, you should consult a lawyer.
May 15, 2025
Many people in the midst of planning their estate consider adding an adult child as a joint owner on a bank account as a straightforward way to avoid probate taxes and to ensure what they expect will be a smooth transfer of funds after death. In fact, many clients tell us that their deceased parent received explicit advice from their bank that adding an adult child as a joint account holder is an appropriate probate planning strategy. However, relying on joint accounts to transfer inheritance to your children can carry legal complexities that are misunderstood and can lead to unintended consequences.
Under Ontario law, naming an adult child as a joint account holder does not automatically mean that the child becomes the rightful owner of the funds upon the parent’s death. Unless there is clear evidence that the parent intended to gift the funds outright to their child, the law applies what is known as the presumption of resulting trust. This is a legal principle that when a parent transfers property to an adult child without receiving value in return, it is presumed the child is holding the property in trust for the parent’s estate, not as a personal gift. In practical terms, unless the child can prove that the parent intended a true gift, the funds in the account may be treated as part of the estate and are subject to probate.
Disputes typically arise when one child is added as a joint account holder and, after the parent’s death, claims the funds as their own. Other beneficiaries may object, arguing that the account was intended for estate purposes or convenience only. The presumption is that the funds were being held in trust for the estate. Meaning, without clear, contemporaneous evidence of a gift, these cases will often result in lengthy and costly litigation.
These disputes can delay estate administration, trigger court applications, and lead to fractured family relationships. Legal costs pursuing litigation can erode the very funds the joint account arrangement was intended to preserve.
When assessing whether the funds in a joint account are held in resulting trust, courts will consider factors such as: who deposited the funds; how the account was used; whether the deceased retained control; and any written or verbal statements made about the account. Where the evidence is unclear or contradictory, the surviving joint account holder often faces an uphill battle to prove a gift was intended.
Joint accounts can be an appropriate estate planning tool, but they should be used with care and proper documentation. What appears to be a simple banking decision can have far-reaching legal consequences.
Cara Zacks
Nothing contained in this post constitutes legal advice or establishes a solicitor-client relationship. If you have any questions regarding your legal rights or legal obligations, you should consult a lawyer.
Nov 5, 2024
A good executor wants to respect the Deceased’s wishes. But when it comes to the choice of lawyer, the Deceased’s wishes shouldn’t carry the day. Many executors mistakenly think that the lawyer whom the Deceased hired to draft the Will should be the one to “probate” it (i.e., submit it to court along with an application for a Certificate of Appointment of Estate Trustee). And unfortunately, some lawyers seem to make the same assumption, and hold themselves out as effectively already hired for the job.
That assumption is especially common when the drafting lawyer has been storing the Will in the meantime, and the executor needs to contact them to get the original. Rather than releasing the Will, sometimes the lawyer starts discussing the content and timing of a probate application, as though they own the Will or have some right to be hired for the job of probating it. While this may be inadvertent, it leads to unfairness. The client does not realize they have a right to review retainer terms (including cost!) upfront and to say no if they don’t like those terms. Clients might pay more than they want or need to, or end up hiring a lawyer they aren’t comfortable with, because they did not understand they have a choice.
The executor can always demand the release of the original Will and take it to a lawyer of their choosing. The testator cannot enter into a future retainer agreement with a probate lawyer in advance of their death, or bind their executor to their choice of lawyer. And legally speaking, the Will is not the property by the lawyer who drafted it, even if that lawyer has agreed to store the Will. A Will is the property of the testator, which means that it becomes the property of the executor after the testator’s death.
The lawyer who drafted the Will has no special knowledge or expertise beyond any other lawyer who does probate. Sometimes, they have less, because probate and estate administration might make up only a very small portion of their practice. And if there is anything contentious involving the Will (for example, a beneficiary has concerns about its validity or is threatening a Will challenge) then the lawyer who drafted the Will should absolutely not be acting for the executor. They are a potential witness and in a conflict of interest. The executor should retain a new lawyer with no involvement in the Will drafting.
If you find yourself named as executor in a Will, know that you are free to choose your own lawyer. As with any other service, shop around. Find the price and the person you feel comfortable working with. While your deceased family member or friend may have chosen to hire that lawyer, you don’t have to.
As a further tip, be cautious if a lawyer tells you that you must pay a fee before they can release the Will to you, or that they are entitled to be paid for their time retrieving it. Ask to see the retainer agreement or other contract signed by the testator entitling the lawyer to be paid a fee for storage or retrieval.
Laura Cardiff
Nothing contained in this post constitutes legal advice or establishes a solicitor-client relationship. If you have any questions regarding your legal rights or legal obligations, you should consult a lawyer.
Apr 26, 2024
In my previous blog about probate, we discussed what “probate” or a “Certificate of Appointment of Estate Trustee” is, and the different residency and security requirements for probate in Ontario, depending on whether the deceased person had a Will. Sometimes, clients will come to us having already obtained probate or been appointed as estate trustee in a jurisdiction outside of Ontario, then discovering that the deceased owned a bank or investment account in Ontario and needing Ontario probate to get that asset liquidated. In today’s global landscape, we are encountering these situations with increasing frequency.
Where the deceased did not have an Ontario Will, the Estates Act provides that estate trustees can apply for a “Resealing of Appointment of Estate Trustee” or an “Ancillary Appointment of Estate Trustee” in Ontario. Resealings and ancillary appointments have the same effect of recognizing the foreign grant of probate in Ontario as if it were originally granted by the Ontario Superior Court of Justice. In other words, a resealing or ancillary appointment will provide the estate trustee with authority to act on behalf of the estate in Ontario and administer the Ontario assets. The difference between the two is where the original grant of probate was obtained.
Where the applicant was appointed as estate trustee by a court (a) outside of Ontario but within Canada, or (b) outside of Canada but in a Commonwealth country, they should seek a Resealing of Appointment of Estate Trustee. The applicant does not have to be an Ontario resident, and their foreign estate trustee appointment could have been made with or without a Will. A bond is required unless the original grant of probate was made with a Will and the applicant is a resident of Canada or elsewhere in the Commonwealth. The amount of the bond may be dispensed with or its amount reduced by the court in special circumstances.
If the applicant was appointed as estate trustee by a court that is not part of the Commonwealth, they should seek an Ancillary Appointment of Estate Trustee. The applicant does not have to be a resident of Ontario. A bond is required unless the applicant is a resident of Canada or the elsewhere in the Commonwealth. The amount of the bond may be dispensed with or its amount reduced by the court in special circumstances.
If you find yourself unsure about what kind of probate to apply for or which forms to submit, feel free to reach out to our team and schedule a consultation with us.
Zara Wong
Nothing contained in this post constitutes legal advice or establishes a solicitor-client relationship. If you have any questions regarding your legal rights or legal obligations, you should consult a lawyer.
