Estate administration issues in Ontario
Estate administration in Ontario can be a complex legal process. The person administering the estate (the administrator or executor) must follow the legal requirements of the estate administration process. One of the pieces of legislation governing estate administration in Ontario is the Estates Administration Act.
Charles Ticker is a lawyer with over 40 years of experience. He has helped executors administer many different kinds of estates. Executors must ensure that they know their rights and that they are following the legal requirements of the estate administration process in Ontario. There are many situations where even if an estate is simple to administer, the executor of the estate may be exposed to estate litigation.
Probate is the verification by a Court (usually a Judge) that the will in place is valid. Probate also verifies that the executors or trustees appointed have the authority to administer the estate. The Court can approve the will and confirm the the appointment of the executor or trustee. Probate is one of the crucial steps in the estate administration process. It is necessary in various situations. If it does not occur in a timely manner, estate administration may be delayed. For example, some institutions such as banks may refuse to release funds held in bank accounts to the executor or trustee for distribution until probate takes place.
Probate also protects the executor or trustee administering the estate from personal liability. If a will is probated by the Court, the executor or trustee is protected from personal liability if the assets of the estate are distributed or if a subsequent will is discovered.
Estate administration and probate fees
There may be instances when the person making the will (the testator), may attempt to avoid paying probate fees. Probate fees are a tax in Ontario called the estate administration tax. For example, a testator may decided to make his or her adult children joint tenants on a bank account. This is done to attempt to avoid estate administration tax which is payable only if the will is probated. This tax is 0.5% on the first $50,000.00 of the estate and 1.5% on the amount over $50,000.00.
The intention is for the bank account to pass to the adult child who is a joint tenant by way of survivorship outside of the will and probate fees will be avoided. Whenever you are dealing with probate or probate fees, it is important to consult a probate lawyer.
Pecore v. Pecore, 2007 SCC 17
The case of Pecore v. Pecore, 2007 SCC 17 from the Supreme Court of Canada held that there is a presumption that all joint accounts held between parent and an adult child do not automatically pass to the child when the parent dies. The presumption is that the account is being held in trust for the beneficiaries of the estate. This applies unless adequate evidence is presented to rebut the presumption. If that happens, the account will go to the child by way of survivorship.
Estate administration and estate planning require advice from an experienced estate lawyer. Charles Ticker has been a lawyer for over 40 years and restricts his practice to estate litigation, estate administration and mediation of estate disputes. There are many situations where mistakes during the estate administration process may lead to estate litigation.
If you are involved in an estate administration dispute in Toronto, you should consult a Toronto estate litigation lawyer since estate disputes in Toronto and some other parties of Ontario are subject to mandatory mediation. Estate litigation lawyers are able to assist you with complicated estate law issues in order to ensure your rights are protected.
The information on this website is not legal advice. It is for informative purposes only. Contacting us through the website, email, or telephone does not mean you have retained a lawyer. To book a consultation with an estate lawyer, call: 1-866-677-7746.