Probate Tax: What you need to know for your estate plan

One of the essential elements of any Will is the appointment of an executor or executors (also called “estate trustees”). Executors derive their authority from the Will and are in charge of the administration of the estate of the deceased individual. Such administration involves making an inventory of the estate’s assets, ensuring that the estate’s liabilities are satisfi ed, and dealing with the remaining assets of the estate in accordance with the provisions of the Will.

Since a Will only takes effect upon death, individuals may re-write their Wills many times over the course of their lifetime. Usually, each Will begins with a provision that revokes priors Wills. The ever-present possibility of a given Will not being the last Will leads to issues of liability for the individuals claiming to be the executors and for thirdparties dealing with the estate’s assets. Therefore, in certain situations, there is a need to have a court confirm the validity of the Will and the appointment of the executors therein prior to the administration of the estate.

A. What is probate?

In Ontario, probate is the process whereby the Ontario Superior Court of Justice (the “Court”) certifies the validity of a deceased’s Will and confi rms the powers that the Will grants to the executors. This is evidenced by the issuance of a “Certificate of Appointment of Estate Trustee with a Will”. Although the certifi cate itself is no longer called “Letters Probate”, the procedure for obtaining the certificate is still commonly referred to as “probating the Will”. Probate application documents include the Will and information on the value of the assets governed by the Will. Upon being fi led with the court, such documents become public documents.

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