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What is Probate

Probate is an approval process that validates your will in court and confirms the appointment of your executor. Under Ontario law, this process is called Applying for a Certificate of Appointment of Estate Trustee with a Will. This is a legal document that serves as proof that the executor has the authority to deal with the estate.

Not every will needs to be probated as it depends on the specific case. In small estates, a regular copy of the will may suffice to manage the matters of the deceased estate, however, in the case of large estates or where there is likely to be a challenge to the will, probate will be necessary to establish the validity of the will and authority of the executor.

Financial institutions often require a probated copy of the will to ensure that the executor has the authority to deal with the deceased estate.

How can I avoid Probate

In certain cases, assets jointly held by two people don’t need to go through probate if one person dies. For example, jointly held bank accounts usually transfer directly to the surviving accountholder. But the wording of your account agreement is key. A lawyer can assist in ensuring you understand the legal implications of jointly held assets.

In the case of joint title on your home for example, if you and your partner are listed as owners on the property’s deed, the surviving partner gets full title to the home in the event of the death of the first partner. However, be aware of having joint title on an asset for the sole reason of avoiding probate.

Including the name of a child or partner on a jointly held asset may carry risks that can cause a financial loss in certain instances. Creditors may have a claim against your home if your child or partner are in arrears with their debt. In the case of a child getting divorced, their spouse may claim a share in the asset.

To ensure that your rights are protected, it is necessary to discuss your goals and estate plans with a lawyer who can advise you on the best way forward.

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