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.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
