The Executor's Office

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As Executor, you are required to make reasonable efforts to locate the original Will of the deceased. If all you have is a photocopy of the Will, then you may submit an Application for Appointment of Estate Trustee ("Probate") with a photocopy of the Will. However, additional steps are required in such an Application, as compared to a scenario where there is an original Will. It is important to note that there is no guarantee that an Application for Probate will succeed, and the fact that there is no original Will may hamper your chances of success. It is advisable to speak with a lawyer about your options.

It depends. If as Executor, you do nothing to prejudice the estate's ability to repay all of its debts, then you are not personally responsible to pay them. However, if through some act or omission, you prevent the estate from being able to satisfy its creditors, then you may be held personally responsible for repaying the debts of the deceased. It is advisable to obtain legal advice before taking any measures to act as Executor.

The term Probate is short-form for an "Application for a Certificate of Estate Trustee" and comes from the Latin verb probare, which means to prove. Through the Probate process, the Courts implement a set of legal rules that go back to Medieval ecclesiastical courts in order to establish whether a Last Will and Testament is the Last Will and Testament of the deceased. This process involves the swearing of affidavits by purported Executors, on which they may be cross-examined on pain of legal consequences under the laws of perjury, and the giving proper notice to purported beneficiaries.

As the beneficiary of an estate, your rights derive from the following main sources: the Will of the deceased; the Succession Law Reform Act of Ontario, the Trustee Act of Ontario, and case law. 

The obligations of Executors correspond to the rights of beneficiaries. You should be aware that if you are the beneficiary of a share of the residue of the estate (what is left after debts, taxes and estate expenses are paid), you have the right to an estate accounting.

If you are unsure of your rights in a particular estate, it is advisable to speak with a lawyer.

As the Executor of a Will, you have a great number of obligations. Executor obligations derive from the following main sources: the Will of the deceased, the Succession Law Reform Act of Ontario, the Trustee Act of Ontario, and case law. Among your obligations is the obligation to provide an estate accounting to the beneficiaries of the Estate. 

If you have been named as the Executor of a Will, it is in your best interest to seek legal advice. 

The Probate Tax is officially known as the Estate Administration Tax. Subject to some exceptions, it is levied by the Province of Ontario pursuant to the Estate Administration Tax Act on all assets forming part of the estate over and above the first $50,000 of the estate. 

The Probate Tax in Ontario is 1.5%. It can therefore be seen as a wealth tax that is levied on the estate of the deceased. The Probate Tax is not technically payable by beneficiaries, but rather by the estate prior to distribution. Ontarians have the right to arrange their estates in such a way as to minimize the applicability of the Probate Tax, which can result in significant tax savings that leave more to their beneficiaries. 

Those who wish to save Probate Tax should speak with a lawyer to explore their options.

There are a number of ways to lawfully avoid Probate Tax in Ontario. Two of them are described below.

Primary and Secondary Wills for Business Owners, Investors, Physicians and Dentists

The Ontario Superior Court of Justice in Granovski Estate v. Ontario gave permission to Ontarians to arrange their estates in such a way as to minimize the Probate Tax on their estates by way of Primary and Secondary Wills. To put it simply, Primary and Secondary Wills each deal with different types of assets upon death. The Secondary Will lawfully shelters from Probate Tax specific types of assets, such as shares in a privately owned company or jewellery. If you are a business owner, investor, physician or dentist with your own private company, then it is advisable to discuss a Primary and Secondary Will structure for your estate with your accountant and lawyer.

The Alter Ego Trust and Joint Partner Trust for Canadians Over Age 65

Canadians over the age of 65 may settle an Alter Ego Trust (for individuals) or Joint Spousal Trusts (for married and common law couples) during their lifetime to lawfully shelter from Probate Tax their assets, such as their home and investments. In short, a trust instrument can place assets outside of one's estate, and therefore, out of reach of Probate Tax. The Alter Ego Trust and Joint Spousal Trust are recognized under the Income Tax Act and are useful for allowing substitute decision-makers to assist Canadians with their property, including finances, while away or while under a mental incapacity. One should only proceed with a trust in consultation with one's accountant and lawyer.

Whether or not you have Will, if you pass away leaving one or minor children behind, a formal Guardianship Application is required in order to appoint one or more Guardians for your child(ren). The person applying for Guardianship is required to initiate the Guardianship Application. A judge is required to make a determination that weighs the best interest of your child(ren) at the time the Guardianship Application is made. 

A properly drafted and executed Will speaks from the date of death and should include a Guardianship Clause that states your wishes about who should be appointed as the Guardian of your minor child(ren). Such a clause may also express wishes about the standard of living and upbringing of your child(ren). For example, if you are a practitioner of a specific religion and desire that your child(ren) continue to be brought up in your religion, it is especially advisable to have a Guardianship Clause in your Will, to select your child(ren)'s Guardianship candidate accordingly, and to mention this in your Will. If you are married or in a Common Law relationship, then you and your spouse should seek agreement about the guardianship of your child(ren) and seek legal advice about preparing an estate plan that includes a Guardianship Clause. If you are separated, then it is advisable to seek legal advice about your options, your rights and the potential rights of the other parent of your child(ren) to the guardianship and custody of your minor children. If you have a separation agreement in place, it is advisable to have your estate planning solicitor review the agreement as part of the estate planning process.

If you have minor children, it is a good idea to seek the advice of an estate planning lawyer to prepare an estate plan that makes sense for you.