Estate Administration

In Ontario, the Estate Trustee must confirm the correct amount of Estate Administration Tax is paid to the Ontario Ministry of Finance. The tax paid is based on the value of the assets of the estate.

All Estate Trustees who receive a Certificate of Appointment have a duty to file a detailed inventory indicating everything a person owned at death and the value of those assets. To submit this information, the Estate Trustee must file an Estate Information Return Form (EIR Form).

Key Filing Deadlines:

• The deadline for filing the EIR Form to the Ontario Ministry of Finance is 180 days from the issuance of the Certificate of Appointment
• The time to report changes to the initial EIR Form — including adjustments in value or additional asset information — is 60 days
• The Ontario Ministry of Finance has the option to audit any EIR Form filed for up to four years from the date it is filed

We recommend that all Estate Trustees keep all relevant records to substantiate the values of the estate assets. An Estate Trustee who fails to meet these obligations may face significant penalties.

Contact Hummingbird Lawyers for guidance on your duties as an Estate Trustee.

Unexpected tragedies happen to every family. Yet as difficult as these situations can be, there are responsibilities that must be taken over to ensure the estate is properly looked after. For many, the first question is: “So I’m the Executor of Will — what does that mean?”

What Is an Executor of Estate? “Your ‘estate’ covers everything that you own individually at the time of your death. Your car, bank accounts, clothes, jewellery, and business interests. If you own it alone, it is part of your estate.” The Executor is in charge of everything from securing personal documents and valuable items to cancelling insurance and transferring vehicle ownership.

What Is an Executor of Will? The Executor is the appointed person in charge of the estate and its distribution. If no will has been created, Ontario’s Succession Law Reform Act directs who is able to apply to become the Executor as well as who the beneficiaries will be. After obtaining a Certificate of Appointment, the Executor collects all assets, pays all debts, prepares final accounting and tax returns, and then distributes what is left to the beneficiaries.

Why Do You Still Need a Certificate of Appointment When the Will Names the Executor? The need for a Certificate depends on the nature of the assets left behind. Real estate, for example, may not be transferred from the deceased to a beneficiary in Ontario without a Certificate of Appointment of Estate Trustee. There are some assets that may be distributed with the Will alone.

Watch — Understanding the Role of an Executor: https://youtu.be/3aONevDAZpA

Contact Hummingbird Lawyers for guidance on your duties as an Executor of Will.

When someone dies owning an asset — bank account, property, vehicle, etc. — by themselves, in order to transfer the ownership or title of that asset, you must go through a legal process called probate.

Probate in Ontario is the process for obtaining the legal authority to act on behalf of the estate, collecting the assets, paying the debts, and distributing the assets properly. When a person applies to the court to be the Executor, they obtain a Certificate of Appointment — this is what grants the legal authority for the Executor to perform all necessary duties.

How Long Does Probate Take? Courts are currently experiencing a backlog in processing Applications for a Certificate of Appointment. Processing times of 12–14 weeks at some local courts are not uncommon. Overall, it typically takes one year to probate an estate. If there is litigation, trusts, or other complicated issues, it could take longer.

Assets That Do NOT Require Probate:

• Jointly owned assets with a right of survivorship (JTWROS)
• RRSPs, RRIFs, and TFSAs with a named beneficiary other than “Estate”
• Insurance proceeds paid to a named beneficiary other than “Estate”
• Real estate owned outside of Ontario
• Gifts made during your lifetime
• Assets held in a trust created during your lifetime (inter vivos trusts)

Probate Tax & Fees in Ontario: While there is no “death tax” in Ontario, you do pay an Estate Administration Tax to the Ministry of Finance. This tax is calculated based on the total value of all assets going through probate — approximately 1.5% of the value of the estate.

The Little Black Book of Probate: Written by Hummingbird Wills & Estates Lawyer Amy MacAlpine, the Little Black Book of Probate covers frequently asked questions about the probate process in plain language. Click to download a free copy.

Contact Hummingbird Lawyers for assistance with probate matters.

Sometimes, the best option for appointing an executor or a power of attorney is to name a professional such as an accountant, a bank, or a lawyer. We offer executor and power of attorney services to some clients and can assist with the management of your affairs during your lifetime if you become incapacitated, or with the administration of your estate after your passing. Fee agreements are put into place along with particular clauses in your powers of attorney and will. Click here to see examples of our fee agreement structures.

Please note these fees are subject to change and a consultation should be scheduled with one of our estate lawyers to confirm whether Hummingbird Lawyers is an appropriate option. Only a signed fee agreement with the firm, confirms that we agree to act in any of these capacities.

A “Passing of Accounts” is a formal court process which audits the handling of an estate. The executor provides detailed documentation outlining the estate assets and debts, in addition to estate receipts, bank statements, cheques, deposits, professional expenditures, asset distribution, reimbursement, and any other estate debits or credits.

Two Ways a Passing of Accounts Occurs: The executor will either file a Notice of Application to Pass Accounts (1) of their own volition or (2) in response to a court order. A beneficiary who desires to initiate a passing of accounts must apply to the court for an order compelling the executor to pass their accounts.

The Process:

• Application to Pass Accounts — The executor files the Application along with supporting documentation including estate accounts, financial documents, an affidavit, a copy of the Certificate of Appointment, and a draft order. Documents must be served on all interested parties 60–75 days before the proposed hearing date. Filing fee: $322.
• Response to the Application — Beneficiaries may challenge any item on the accounts. Common reasons include disagreement over executor compensation, estate expenses or income, sale or value of estate assets, or the pace of distribution. A beneficiary wishing to contest must file a Notice of Objection to Accounts at least 35 days before the hearing date.
• Executor Replies to Objections — The executor combines all remaining Notices of Objection and prepares a Reply to Notices of Objection, which is filed and served on all individuals entitled to notice.
• Beneficiary May Reply to the Executor’s Reply — Beneficiaries may submit a further reply within 5 days before the hearing.
• The Court Hearing — If disputes remain unresolved, the matter proceeds to a contested hearing where the executor and all responding beneficiaries present their case in court.

Contact Hummingbird Lawyers for assistance with passing of accounts matters.

Sometimes an Ontario resident passes away and appoints an executor who does not live here. Sometimes a resident of a foreign jurisdiction has assets in Ontario that now require probate. As a foreign executor, people are often told by their local lawyer that they need to “reseal probate” in Ontario or “get a grant of probate” in Ontario.

We can offer services to a foreign executor including:

• Appointing a foreign executor
• Assisting a foreign executor with the administration in Ontario
• Probating assets located in Ontario
• Resealing a Grant of Probate from another jurisdiction

We have served executors from all over the world including Canada, the United States of America, the UK, Ireland, Israel, South Africa, Mexico, and Hong Kong.

What Is Resealing? Resealing is a court process whereby we confirm an executor’s appointment with or without a will from another jurisdiction. Resealing can be granted from courts in the United Kingdom, a province or territory of Canada, or any British possession. For all other jurisdictions, we can apply for a Certificate of Ancillary Appointment of an Estate Trustee.

Can You Name an Executor Who Does Not Live in Ontario? Yes, but this needs to be carefully reviewed with an estates lawyer. You must specifically write in your will that the appointment is without bond — otherwise a nonresident may be required to post security worth up to three times the value of the estate. We always recommend also naming an alternative person or professional who lives in Ontario as a backup.

Watch — Understanding the Role of an Executor: https://youtu.be/3aONevDAZpA

Contact Hummingbird Lawyers for assistance with foreign executor matters.